Bench Memos

Law & the Courts

Judicial Winning: Kevin Newsom

(Michał Chodyra/Getty Images)

Kevin Newsom’s impressive tenure as solicitor general of Alabama made him an obvious choice for President Trump to appoint to the Eleventh Circuit, where Judge Newsom now sits. Just a few months after his appointment, Judge Newsom made it onto President Trump’s Supreme Court shortlist.

Judge Newsom cares deeply about getting cases right. He demonstrated as much in a recent Establishment Clause case about a 34-foot Latin cross in the City of Pensacola’s Bayview Park.

In Kondrat’yev v. City of Pensacola, decided in February of this year, Judge Newsom not only authored the court’s decision, but also issued a separate concurring opinion of his own (joined by another judge on the panel) to point out a glaring issue with the precedent he was bound to apply in the decision.

Plaintiffs challenged the presence of the Bayview Park cross in Pensacola — which has stood for over 75 years — on Establishment Clause grounds. They argued that the First Amendment’s Establishment Clause, which provides that “Congress shall make no law respecting an establishment of religion,” barred the city’s maintenance of the cross.

Judge Newsom parsed the Supreme Court’s recent decision in American Legion v. American Humanist Association to answer two questions. First: May the plaintiffs even bring this challenge (do they have standing to sue)? And second: Is there a First Amendment violation here? On the first question, American Legion is unclear; as such, Judge Newsom had to apply Eleventh Circuit precedent to hold that the plaintiffs’ “spiritual” or “metaphysical” injury was enough of a concrete injury to justify consideration of the case. On the second question, however, Judge Newsom applied American Legion and found that the cross could stay.

It would have been easy for Judge Newsom to simply author that opinion and call it a day, but he was not done. He proceeded to write separately from the court, highlighting the wrongheadedness of the Eleventh Circuit precedent he had to follow, which allows for standing in these “spiritual injury” cases. Judge Newsom noted that such a precedent was “utterly irreconcilable” with Supreme Court precedent barring “psychological injury” cases. Further, he asked, “can it really be that I — as a judge trained in the law rather than, say, neurology, philosophy, or theology — am charged with distinguishing between ‘psychological’ injury, on the one hand, and ‘metaphysical’ and ‘spiritual’ injury, on the other? Come on.”

Judge Newsom’s analysis here was on point: The “spiritual injury” standard threatens to invite judges to stretch the Establishment Clause well past its original meaning. Judge Newsom recommended that the full Eleventh Circuit reconsider.

Standing has been a hot topic at the Eleventh Circuit. With more judges like Kevin Newsom on the federal courts thanks to President Trump and the Senate, it is likely that the correct conception of the standing doctrine will begin to prevail in short order.

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