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Supreme Court reversals deliver a dressing-down to the liberal 9th Circuit
Stanford Law School professor Jeffrey L. Fisher , who argues before both courts, said he does not believe 9th Circuit judges are trying to "flout" the decisions of the Supreme Court. But he acknowledges a difference in approach that often leads to reversals.
No judge more personifies the 9th Circuit's approach than 79-year-old Stephen Reinhardt, widely considered to be the nation's most liberal appeals court judge.
Reinhardt has outraged conservatives with decisions ranging from his belief that the words "under God" in the Pledge of Allegiance are unconstitutional to his more recent refusal to recuse himself from the circuit panel considering same-sex marriage
Those opposed to the unions said Reinhardt should not be hearing the case because his wife was the longtime director of the American Civil Liberties Union in Southern California, which had taken sides in the case.
So conservatives were delighted that the three recent decisions that earned the tough language from the court all were written by Reinhardt.
"It's not personal, but it's not quite coincidental, either," said Hellman. He said conservative law clerks who review petitions to the court are likely on alert for government requests to overturn criminal-procedure decisions from the 9th.
"A Reinhardt opinion granting habeas gets extra scrutiny," Hellman said.
Fisher, a former Reinhardt clerk, defends his old boss. No appellate judge acts alone, he notes, and the cases the Supreme Court criticized contained a unanimous panel decision and one opinion affirmed by the 9th sitting en banc.
Hellman notes that the number of cases overturned from the 9th reflect only a tiny portion of the cases it decides. And last year, the Supreme Court affirmed 29 percent of the cases it reviewed from the circuit, which was slightly above the affirmation rate of the rest of its docket. The U.S. Court of Appeals for the 6th Circuit was last year's big loser.
But Hellman said one prediction about the 9th is inevitable: "We'll see more reversals before the term is up, of that you can be sure."