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An appeal has already been announced. The next decision for defenders of the use of the words “under God” in the Pledge of Allegiance is: where? The state and the local school district that were the targets of the suit can ask an 11-member en banc panel of the 9th U.S. Circuit Court of Appeals to review Wednesday’s controversial decision, or they could take the appeal straight to the U.S. Supreme Court. The Circuit judges could also vote to rehear the case on their own motion. To critics, the case might seem custom-made for an intracircuit reversal, precisely the type of outcome suggested by two members of the Supreme Court as a means of cutting down on what was once a poor record for the 9th Circuit on high court review. But what will come as a surprise to many, perhaps even Justices Sandra Day O’Connor and Anthony Kennedy, is that the Supreme Court reverses the 9th Circuit’s en banc decisions more often than it reverses three-judge panels. The same is true for all cases the Supreme Court hears, not just the 9th Circuit. (See Related Chart). Some judges say the reason is that en banc cases are typically more controversial, and thus more likely to result in reversal. But to others, that is also the point — if the Supreme Court is going to take the case up anyway, why bother? And that is likely to be a factor in whether the 9th Circuit decides, or bothers, to rehear the case. On Wednesday, the decision’s author, Senior Judge Alfred Goodwin, issued a stay in the mandate to give the parties in Newdow v. U.S. Congress, 02 C.D.O.S 5700, more time to consider an appeal — even though the school district has already announced that it intends to do exactly that. The stay is largely cosmetic since the mandate would not issue for some time anyway. “I think he’s just making public what the circumstances are,” said University of California, Berkeley’s Boalt Hall School of Law Professor Jesse Choper. But it is a signal that the court is well aware of the publicity the case is generating. On Thursday, California Gov. Gray Davis announced he would ask for an en banc review. The state has not yet filed any briefs in the case, either at the district court or at the 9th Circuit. Eugene Volokh, a constitutional law professor at UCLA School of Law, said he doubts the court will find the votes to take the case en banc with the current division of 17 Democrat-appointed judges versus seven Republican-appointed judges. Volokh also suggests the Supreme Court is likely to reverse the case, though by a closer vote than many might think. Volokh, like some other scholars, believes the decision is legally sound. But he, like most, still believes the decision will be overturned. Almost immediately after it was announced, the decision became grist for the political mill. Republicans blamed Senate Majority Leader Tom Daschle, D-S.D., for not moving more judicial nominees through the Senate, presumably reasoning that if he had done so, some other judge might have decided the case. Few, if any, of Daschle’s Republican critics mention that Goodwin is a Nixon-appointed Republican who happens to be a leader in his church. California’s Republican gubernatorial candidate sounded a similar theme on the steps of the 9th Circuit’s San Francisco courthouse. Bill Simon led a crowd of around 200 in the Pledge of Allegiance, after an aide told the crowd that the decision was “a direct result” of slow progress on judicial nominees. One small child held a sign that read: “I pledge allegiance, Mr. Daschle. Do you?” Other signs included: “Liberal Judges: Mental Illness on Display,” and “The Stench from the Bench Is Making Me Clench.” It is that reputation for liberalism that has arguably led to the 9th Circuit’s poor record with the conservative Supreme Court in the past, though it’s improved in the last few years. As many national news stories on Wednesday’s decision pointed out, the Circuit is overturned more often than any other circuit. O’Connor and Kennedy both suggested it hear more en bancs in order to cut down on reversals. But over a 10-year period from 1989 to 1998, the Supreme Court affirmed 26.8 percent of all en banc cases it reviewed, compared with 35.4 of appellate court panel decisions. For the 9th Circuit, the numbers were 11.1 percent and 21.3 percent, respectively. And this year, the Supreme Court reversed two 9th Circuit en banc decisions, affirming none. “There is little evidence that the Supreme Court, in either its outcomes or opinions, cuts the U.S. Courts of Appeals much slack for having decided cases en banc,” said political science Professor Stephen Wasby of State University of New York-Albany, who published those findings this year. Wasby’s statistics can’t, of course, account for instances where the outcome of an en banc review heads off a second look by the Supreme Court — which is what O’Connor and Kennedy were seeking. For example, if Goodwin’s decision was reversed en banc and the justices then denied cert, it wouldn’t show up in Wasby’s count. Despite the increased use of en bancs, the number of cert grants in cases out of the 9th Circuit hasn’t declined. The 9th Circuit has a “limited” en banc procedure, which uses 11 of the court’s 28 allotted judges to rehear cases. It also has a rule allowing for all active judges to hear a case, but it has never been used. Understanding why en banc opinions don’t seem to fare any better — and actually fare worse — than three-judge panels is difficult. “Each en banc panel is separately empanelled and results are very heavily determined by the makeup of each panel,” said Judge Diarmuid O’Scannlain, a Republican-appointed 9th Circuit judge. Earlier this week, both Chief Judge Mary Schroeder and former Chief Judge Procter Hug Jr. (under whom the call to hear more en bancs was made) theorized that en bancs are inherently tougher calls, and therefore could be more likely to be reversed. That conclusion was supported by University of Nevada-Las Vegas Law School Professor Carl Tobias. “It shouldn’t be surprising that more en bancs are reversed because those are the most controversial,” he said. But that raises a question — if the case is headed for the Supreme Court anyway, why bother taking it en banc? The result is more expense and delay for the litigants and lost time for the judges. Some judges have said those concerns sometimes arise when considering whether to take a case en banc. But nevertheless, a litigant has to ask. “That’s always so random. You don’t know whether you’ll get an en banc and you certainly don’t know whether you’re going to get cert,” Tobias said. Related Chart

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