Supreme Court reversals deliver a dressing-down to the liberal 9th Circuit

Robert Barnes
Monday, January 31, 2011; A13

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 that 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 appoint about three-quarters of the court's judges. "That really set the pattern that continues today," Hellman added.

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."

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