Pledge Supporters Have 'Menu of Legal Options'

There are a "menu of legal choices" available to those who want the courts to overturn Wednesday’s Pledge of Allegiance decision before it can be enforced in classrooms next fall, according to a legal expert. 

The first step would have the Elk Grove, Calif., School District ask the same three-judge panel that issued Wednesday's ruling to simply reconsider its decision.

But while there is some precedent for such reversals, that option "almost never works," according to Judge Andrew Napolitano, senior legal analyst for Fox News.

The next, and more likely, option would be to bring together all 28 judges in the 9th Circuit Court to hear the case in a bid to overturn the decision. Convening the entire circuit en banc, as this maneuver is known, happens quite frequently and is much more likely to result in a reversal, Napolitano said.

The school board can also directly petition the U.S. Supreme Court to overturn the ruling. If that happens, the board will almost certainly receive the full support of the U.S. Justice Department, which often appears before the high court.

The Supreme Court is not obligated to hear the appeal. It can simply refuse to hear the case without comment. But the court has often taken such high-profile cases. 

It could take months for the entire 9th Circuit or the Supreme Court to hear and rule on the case, however. That could take the controversy well into the next school year, something that opponents of Wednesday’s decision want to avoid.

In the meantime, the school board will almost certainly file a motion to stay, or simply delay, the enforcement of the decision. Since classes are already out for the summer, the board has between now and September to file that motion.

The stay motion can be filed at any of the same three levels — the three-judge appeals panel, the 9th Circuit en banc, or the Supreme Court — as can a motion to overturn the decision itself. 

"My best guess is, even though this is the most liberal circuit court in the country, the full 28-member court is quite likely to reverse Wednesday's decision," Napolitano said.