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.

• 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.

I doubt Judge Reinhardt is worried about getting reversed; he's claimed that it's not because he has moved to the left, but rather because the Supreme Court has moved to the right. That may be true, but the argument is weakened when even the so-called liberal judges are voting to reverse.

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 never hired a Boaltie as a clerk only hired about 2 clerks in the last decade, so he deserves some ribbing.

Congratulations are in order.

I just wanted to create a space for people to leave comments congratulating Thomas Frampton and Ed Piper on their rock-star performances last night. The composure they demonstrated in front of a nearly-full Zellerbach hall, and such an esteemed panel of judges (including, of course, a Supreme Court Justice), was nothing short of awe-inspiring.

While I cannot speak for everyone, I can say that Thomas and Ed made at least one student proud to be a Boaltie last night. Cheers to them both.

The Arizona Ruling

NYT coverage here and Judge Bolton's opinion is here.  What really caught my eye was a line in the NYT report that legal experts think this ruling is headed for the Supreme Court.  Maybe I misread it, and they meant the case is headed to the SCOTUS, but I think they meant appeal of this ruling will end up in the SCOTUS.  With all due respect to these legal experts, I beg to differ. 

I managed to glance through Judge Bolton's opinion and she applied the correct four-step analysis for a preliminary injunction mandated by the Supreme Court.  For the uninitiated, in the past five years or so (give or take), the Supreme Court has been taking care to rigidly define the factors that courts must consider when granting equitable relief, in particular when granting injunctions.  These cases are often at the expense of the Ninth Circuit, the most recent example being the United States Navy Sonar case. 

With that in mind, and with my assumption that the Judge correctly applied the standard articulated by the Supreme Court, the Ninth Circuit will not reverse (and invite yet another Supreme Court review of its preliminary injunction jurisprudence).  Similarly, when the issue at this juncture is the application of the relevant equitable factors, there is no way the SCOTUS grants cert. 

Obviously this is a hot-button issue with lots of opinions that go beyond the relatively boring area of preliminary injunctions.  So consider this an open forum.

Scalia Would Have Dissented in Brown v. Board

You have to hand it to Antonin Scalia -- he clearly isn't trying to put a good face on originalism.

Using his "originalist'' philosophy, Scalia said he likely would have dissented from the historic 1954 Brown v. Board of Education decision that declared school segregation illegal and struck down the system of "separate but equal'' public schools. He said that decision, which overturned earlier precedent, was designed to provide an approach the majority liked better.

This isn't entirely surprising. After all, Justice Scalia was part of a majority that went as far as it could to undermine the integrationist intent of Brown. Still, inasmuch as control over the judiciary is a political battle -- over the next three or seven years, President Barack Obama will have ample opportunity to shape the federal judiciary -- aligning originalism with a position that is wholly at odds with both history and the American public is not necessarily the wisest course of action for a Justice who has expended so much effort to sway the judiciary towards his point of view over his career on the bench.

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Updated at 11:35 PM Pacific: Per Jack Balkin, Justice Scalia didn't actually say what the newspaper said he said. Here's the video.