Recent decisions amount to a dressing down for 9th Circuit

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Washington Post Staff Writer
Sunday, January 30, 2011; 6:22 PM

Sometimes the Supreme Court simply decides cases and sometimes it seems to have something bigger in mind. In the past two weeks, it has been in scold mode, and its target has been the U.S. Court of Appeals for the 9th Circuit.

In five straight cases, the court has rejected the work of the San Francisco-based court without a single affirmative vote from a justice. The nation's largest court, stretching from Montana to Hawaii, the 9th has jurisdiction over nearly 20 percent of the nation's citizens. Not surprisingly, it routinely supplies the largest portion of the cases the court reviews each term.

As the most liberal circuit in the land, its work quite often is at odds with an increasingly conservative Supreme Court.

But some of the recent reversals have been delivered with a lash that those who closely watch the courts say reflects more than just a disagreement of law.

"They seem to do that every now and then," said University of Pittsburgh law professor Arthur D. Hellman, an authority on the federal circuits with a particular interest in the 9th. He was referring to the "combination of a cluster of decisions and language meant to send a message."

The cases overturned have included an obscure case involving credit cards as well as the federal government's right to conduct detailed background checks on its contract employees.

But the pointed language came in criminal cases, where the justices said 9th Circuit judges were inserting themselves into cases where they had no business. One concerned California's parole system and two others were habeas claims, in which prisoners challenge their trials and their lawyers' performances.

Justice Anthony M. Kennedy said federal judges have an important duty in considering whether defendants' rights are protected, but that judges must honor the high obstacles the Supreme Court has set before second-guessing and overturning a conviction.

"Confidence in the writ [of habeas corpus] and the law it vindicates [is] undermined if there is a judicial disregard for the sound and established principles that inform its proper issuance," Kennedy wrote in one of the cases, Harrington v. Richter .

"That judicial disregard is inherent in the opinion of the Court of Appeals for the 9th Circuit."

Kennedy is the only veteran of the 9th Circuit on the Supreme Court and he serves as its designated justice. That Chief Justice John G. Roberts Jr. assigned the decision to Kennedy was another way to send a message, Hellman said.

Hellman said the reversals reflect "primarily a difference that fits into the liberal-conservative dichotomy" between the circuit and the high court. It dates to the court's expansion in the late 1970s, when President Jimmy Carter was able to name about three-quarters of the court's judges. "That really set the pattern that continues today," Hellman added.


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