Fun With Numbers (9th Circuit Edition)
Who cares about the 9th Circuit, anyway? Well...Boalties, I guess, especially since they refuse to apply for clerkships outside California. So I thought N&Bers might be interested to see how their home team fared in the Supreme Court this past year.
Is it unseemly to point out Judge Reinhardt's reversals--without name-hiding asterisks, no less? After all, he was on the panel in Plata v. Brown, the controversial California prison decision that the Supreme Court affirmed. But technically, the Supreme Court was reviewing a decision of a 3-judge district court panel, not a 9th Circuit opinion. And besides, Judge Reinhardt has apparentlynever hired a Boaltie as a clerk only hired about 2 clerks in the last decade, so he deserves some ribbing.
- SCOTUS released 84 opinions this term. 26 of these, or 30%, arose from the 9th Circuit. 18 of these were reversed. (To be fair, that's not so bad. SCOTUS doesn't grant cert. because it wants to affirm. I've heard that the last 17 cases from the Sixth Circuit have been reversed.)
- What about the circuit's liberal bad boy, Stephen Reinhardt? He was on the panel of 6 cases and wrote the majority opinion on 3. The Supreme Court reversed all 6.
- Actually, all 3 majority decisions written by Judge Reinhardt were reversed unanimously. Of the 3 others, 1 was reversed unanimously and 2 were reversed by a 5-4 (conservative) split.
- Judge Bybee--Judge Reinhardt's ideological opposite--was on the panel on 2 of the 3 cases where Reinhardt wrote the court's opinion and dissented in both. The Supreme Court did not grant certiorari on any case in which Judge Reinhardt wrote a dissenting opinion.
- 7 of the cases where the Supreme Court granted certiorari contained dissenting opinions: 2 by Judge Bybee, 2 by Judge Kozinski, and 1 each by Judges Bea, Ikuta, W. Fletcher, and Cudahy (7th Cir.). (Judges Ikuta and Kozinski both wrote dissents on the same en banc case.) With the exception of Judges Fletcher and Cudahy, those are all "conservative" judges.
Is it unseemly to point out Judge Reinhardt's reversals--without name-hiding asterisks, no less? After all, he was on the panel in Plata v. Brown, the controversial California prison decision that the Supreme Court affirmed. But technically, the Supreme Court was reviewing a decision of a 3-judge district court panel, not a 9th Circuit opinion. And besides, Judge Reinhardt has apparently
Labels: Court Cases, SCOTUS, Supreme Court
posted by Carbolic at 6:54 PM
20 Comments:
Never hired Boaltie as a clerk is false. He hired Boalties for the '04 and the '06 term, according to the clerkship database.
As others have commented, it's hard to know which is more newsworthy: A day that the Supreme Court hands down new opinions that includes a unanimous reversal of a Ninth Circuit decision by Judge Reinhardt, or a day that the Supreme Court hands down new opinions that does not include a unanimous reversal of a Ninth Circuit decision by Judge Reinhardt.
The one that made me sit up and notice was the opening paragraph to Justice Kennedy’s opinion for the unanimous Court in Harrington v. Richter (pdf), which reversed Judge Reinhardt this spring:
The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law. Judges must be vigilant and independent in reviewing petitions for the writ, a commitment that entails substantial judicial resources. Those resources are diminished and misspent, however, and confidence in the writ and the law it vindicates undermined, if there is judicial disregard for the sound and established principles that inform its proper issuance. That judicial disregard is inherent in the opinion of the Court of Appeals for the Ninth Circuit here under review. The Court of Appeals, in disagreement with the contrary conclusions of the Supreme Court of the State of California and of a United States District Court, ordered habeas corpus relief granted to set aside the conviction of Joshua Richter, respondent here. This was clear error.
Harrington v. Richter is but one of a long line of similar reversals by what certainly appears to be an ever more frustrated Supreme Court. It is almost as if a Reinhardt opinion from the 9th Circuit arrives at the high court with a presumption of unconstitutionality. (It cannot help that he has purportedly said of the Supreme Court’s review of his decisions: “They can’t catch them all.”)
What I genuinely cannot understand is how someone who is so consistently wrong is also so often in the majority. But then, there are a lot of things about the 9th Circuit that boggle my mind.
Oops, the first link in my post should be to here.
Reinhardt is on the panel hearing the Prop. 8 case as well, right? At least one thing can be clear, whenever that decision comes down, the SCOTUS will grant cert.!
Not if the Cal Supremes hold that the challengers lack standing under CA law.
Of course, that was Reinhardt's strategy.
It would be an absurd result to allow the proponents to defend Prop 8 in the district court but to deny them standing to appeal. Prop 8 should be struck down, but not by the unreviewable decision of a single district judge.
If the CA Supreme Court finds that the proponents lacked standing to defend the constitutionality of prop 8 then the Ninth Circuit should vacate the trial result.
But this sends us right back to square one. If the governor and attorney general refuse to defend the constitutionality of the statute, then how can its constitutionality be litigated in court unless we grant some other party standing?
At the appellate level the court can direct an outside lawyer to argue a position so that the court is fully informed. But how does this work at the trial level? Do you ask an outside lawyer to "try" the case? Without a client?
The most conservative supreme court since the turn of the 20th century overrules a liberal judge? Crazy!
1:35, the point is that many of the Reinhardt reversals are unanimous, i.e., approved by all of the justices, regardless of ideology. In fact, some of this year's Reinhardt reversals occurred without briefing or oral argument -- the Court granted cert, unanimously reversed, and remanded all in the same day.
This problem has nothing to do with the most conservative Court since the turn of the 20th Century. This is all Reinhardt. The guy is way, way out of line.
yea, no offense 1:35, but did you catch the Roberts confirmation hearings? all the scotus does is apply the law to the facts--and whoosh, decision made. Thus, Reinhardt simply does not know what the law is.
Also, 1:59, hopefully someone more articulate than me will slam you with this later, but here's my best shot: The current SCOTUS cannot claim to make any decision that is "regardless of ideology," because all judicial ideologies are not represented on the court. and i'm not just talking waaay out there stuff, but I think there is adecent argument to be made that there is no true liberal on the court at the moment, by even recent historical standards.
Case in point/who would be a liberal justice example? Stephen Reinhardt. And as you admit, 1:59, his liberal opinions often can't get a single vote on the court.
Well, I wouldn't go as far as the last two posts. The 'home plate umpire' analogy that Roberts used at his confirmation hearing is BS. If the law was always clear and discernible, then you wouldn't need appellate courts.
And granted, if I were a federal judge, I wouldn't be too worried about getting reversed. As they say, the Supreme Court's say isn't final because it's always right; it's "right" because it's always final. Particularly since SCOTUS can disregard its precedents, but lower courts can't.
That being said, it is something when even the recent Democratic appointees don't support you.
Oh, and the Supreme Court at the turn of the century (i.e., during the Lochner-era) was far more 'conservative' than the current one.
Look, everyone recognizes that ideology is going to cause judges to drift one way or the other. But intermediate appellate court judges should make an honest effort to conform their decisions to Supreme Court precedent.
It simply can't be the case that Reinhardt does not understand what the Court has been saying about AEDPA. He is too smart for that. The only conclusion I am left with is that he is willfully ignoring the Court.
This isn't ok when Manny Real does it and it isn't ok when Reinhardt does it. If he has an issue with what the Court is doing he has other options. He can write angry, strident concurrences that point out the absurdity and unfairness in Supreme Court precedent. He can write a book. And he can resign.
But this "can't catch them all" mentality is polarizing and extremely harmful to the judiciary. And, it seems to me, one reason that the confirmation process has become so contentious at the circuit court level.
Hear, hear.
The Supreme Court grants cert in about 1.1% of petitions, yet granted (and reversed) SIX petitions from decisions in which Judge Reinhardt was on the appellate panel. I'm sorry, but this just ain't about ideology.
. . . one interesting thing about all of this is that it refutes the supposedly black-letter rule that SCOTUS is not an error-correcting body. When Reinhardt is on the panel, apparently it is.
Yeah, the Supreme Court has never been political so politics has nothing to do with it either.
It's true. If SCOTUS overturns you all of the time, you must be doing it wrong. I mean, wtf was Dred Scott's problem.
if only 1% or whatever of cert petitions are granted, then doesn't that suggest that large amounts of law are made at the appellate court level? and if so, for the same reasons that we expect/allow/tolerate SCOTUS justices to go against precedent when their convictions/belief/politics/etc. counsel it, shouldn't appellate judges who can assume that the vast majority of their cases will never be heard on appeal have the same leeway? put differently, as long as a judge believes that he (or his panel) will be the final arbiter of a given dispute (as SCOTUS justices know they will be and appeals court judges can often with high certainty presume they will be), shouldn't the degree of comfort we have with him abandoning stare decisis be roughly constant (whether low or high on an absolute level)?
[caveat one: i'm not sure i agree with what i just wrote, and i'm sure there are some logical holes worth exposing]
[caveat two: i'm talking generally, disregarding whatever subjective motivations might be behind reinhardt's approach]
11:39,
No one implied or suggested that SCOTUS gets it right all the time. That is a pathetic straw man argument.
Plenty of circuit judges didn't approve of Miranda when it was handed down. Should they have been able to disregard the Court's explicit teachings on that matter?
Miranda is a horrible example. Consistent disagreement between circuit courts has led much of the original Miranda decision to be overturned or distinguished into oblivion.
The difference between Miranda and AEDPA is that Miranda was judicially created, and AEDPA is a statutory directive from Congress. To me, that informs how much leeway a judge should be granted or denied in expanding or shrinking a doctrine.
Reinhardt deserves more criticism than just "some ribbing" for failing to hire Boalties.
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