For 4 Liberal Judges ’85 Was a Season of Reversals

Four of the most liberal judges of the U.S. 9th Circuit Court of Appeals--in a dramatic series of losing skirmishes with the increasingly conservative U.S. Supreme Court--emerged collectively in 1985 as the most reversed faction of federal appellate judges in the nation.

While some of the overturned cases focused on narrow legal questions, there was a clear liberal-conservative split on issues that included free speech, the rights of criminal defendants and government’s responsibilities to the poor.

Judges Warren J. Ferguson of Santa Ana, Stephen Reinhardt of Los Angeles, William C. Canby of Phoenix and Betty Binns Fletcher of Seattle--four of 15 judges appointed to the 9th Circuit by former President Jimmy Carter--wrote 10 of 20 opinions by 9th Circuit judges that were overturned by the Supreme Court this year.

Not only did the four judges equal the reversal total of the 21 other active judges of the 9th Circuit, they combined for more reversals than all of the judges on any of the nation’s other 11 circuit courts. The second-highest number of Supreme Court reversals for an entire circuit court was eight.

The high reversal figures for the liberal judges came as the 9th Circuit was improving its overall record with the Supreme Court after scoring a widely publicized 99% reversal rate in 1984, which brought conservative charges that it was out of step with the rest of the federal judiciary.

After losing all but one of 29 cases that went to the Supreme Court in 1984, the 9th Circuit this year was affirmed in six of 26 cases in which the Supreme Court issued full opinions, a reversal rate of 77%. That was fifth among the nation’s circuit courts and closer to the Supreme Court’s average reversal rate of 66% for the 104 circuit cases on which the high court issued full opinions.

While 9th Circuit liberals pointed to the lower overall reversal figures as proof that the court’s 1984 record was merely a statistical fluke, conservative critics cited this year’s record by the four liberal judges as further evidence supporting their charges that the 9th is a maverick court.

“It shows that the 9th Circuit is a runaway circuit,” said one Justice Department official who monitors the federal judiciary. “These judges know the Supreme Court can’t review every case, so they can afford to get reversed occasionally because they can count on getting away with ignoring precedent nine times out of 10.”

In response, the court’s liberals asserted that they were the victims of a Supreme Court that is steadily diminishing the rights of free speech and fair trial. One leading liberal legal scholar charged that the solicitor general’s office in the Justice Department could be “targeting” some 9th Circuit judges for special scrutiny in deciding which cases to appeal to the Supreme Court.

“The perception of certain judges of the 9th Circuit as liberal judges might affect the selection of these cases for review by the Supreme Court,” said Loyola Law School Professor Gerald F. Uelmen, who conducted a study of 9th Circuit cases over a two-year period.

“The remarkable reversal record compiled by the U.S. Court of Appeals can be seen, at least in part, as the handiwork of the solicitor general,” Uelmen continued. “Rather than reflecting a court which is ideologically out of step, it may simply reflect a Justice Department which is carefully selecting its target.”

Uelmen’s study found that half of the 9th Circuit reversals over the last two years were government cases submitted for Supreme Court review by the solicitor general after losses in the circuit courts, and that the number of 9th Circuit cases selected for review was disproportionate to other circuit courts.

Over the last two years, Uelmen noted, the 15 Carter appointees serving on 9th Circuit panels were reversed twice as frequently as the 10 other active judges appointed by other presidents. He also identified Ferguson, Canby, Reinhardt and Fletcher as the judges who were most reversed, with the addition of Judge Thomas Tang of Phoenix.

Solicitor General Charles Fried, who called the reversal record of the four judges “absolutely amazing,” branded Uelmen’s theory “totally false” and said he pays almost no attention to the names of circuit judges who write the opinions submitted for Supreme Court review.

“I would say it under oath or on a lie detector test,” Fried said. “I will further tell you I don’t really develop a demonology of circuit judges in my mind. Furthermore, those names don’t even ring a bell. If you had given me those names, I couldn’t have told you who appointed them.

“It’s perhaps a failing of mine, but I don’t pay attention to who writes the opinions, and I don’t think the Supreme Court does either.”

Uelmen said the influence of the solicitor general on the Supreme Court reached its peak during the tenure of Rex E. Lee, Fried’s predecessor. Lee resigned this year to practice law in Washington.

“I have read his article and I found it interesting,” Lee said. “But it simply didn’t happen that way. He was interesting, but wrong. We took those 9th Circuit cases and approached them the way we would any other circuit.”

Grover J. Rees III, a special counsel in the Justice Department involved in the Reagan Administration’s selection of new federal judges, called the high number of reversals proof of a liberal political bias among the Carter appointees rather than a Justice Department assault on the 9th Circuit.

Disdain for Precedents

“I think the apparent disdain that a few judges have shown for controlling Supreme Court precedent demonstrates that philosophy played just as strong a role in the Carter selection process as in any other administration before or since,” Rees said.

Among the judges of the 9th Circuit themselves, who decide about 2,500 cases a year that are never reviewed by the Supreme Court, the interpretation of the reversal figures also fell along liberal and conservative points of view.

Noting that President Reagan has already appointed five new conservative judges on the 9th Circuit and that there are vacancies for three more, one leading member of the 9th Circuit’s steadily growing conservative minority predicted that liberal influence on the court’s decisions will soon begin to decline.

“The figures speak for themselves,” said Judge Joseph T. Sneed of San Francisco, a 1973 Nixon appointee. “We have differences of opinion. The system was designed for that. If you look at this two or three years from now, the picture will be completely different.”

Although Ferguson and Canby declined comment on the significance of the reversal figures, Fletcher and Reinhardt defended the opinions written by the 9th Circuit’s liberal and moderate majority, arguing that the liberal judges in most cases were simply complying with existing case law and reaching the same conclusions that conservatives would have reached.

“My sense is that it’s generally the Supreme Court moving to a more conservative stance,” said Fletcher. “We’re not new lawmakers.”

“The more the Supreme Court decides to cut back on constitutional rights and restrict civil liberties, the more often judges with a strong sense of dedication to a living, vital Constitution and individual freedom will be reversed,” Reinhardt said.

Breakdown of Reversals

A breakdown of last year’s 9th Circuit reversals shows that both Ferguson and Canby were reversed three times on opinions that they authored, while Reinhardt and Fletcher were each reversed twice in cases that generally showed the Supreme Court taking a more conservative stance on legal questions.

Ferguson’s reversals were on an anti-trust ruling in Oregon, the granting of a new trial to a defendant in a drug case in Arizona and a major California opinion stating that government aid to families with dependent children should be based on income after taxes instead of income before taxes, which would have raised welfare benefits for about 435,000 families an average of $83 a month.

Canby, the only 9th Circuit judge who was upheld by the Supreme Court in 1984 on a case with no political overtones, found himself this year on the losing side of three cases involving clear differences in judicial philosophy. In those three reversals the Supreme Court further reduced search and seizure restrictions on U.S. Customs agents, sided with the federal government in an Indian claims dispute and limited the First Amendment rights of anti-war demonstrators seeking to distribute literature on military bases.

Among the other 9th Circuit opinions reversed by the Supreme Court was an opinion by Reinhardt, the court’s most colorful writer, which had originally struck down an anti-obscenity statute in the state of Washington because state legislators had included the arousal of “lust” as part of their definition of obscenity.

In striking down the Washington law, Reinhardt essentially took the view that lust was not what it used to be:

“The word has acquired such acceptable connotations that, prior to his election in 1976, presidential candidate Jimmy Carter confessed in a popular national publication that he had ‘looked on a lot of women with lust and committed adultery in my heart many times.’ We do not think that President Carter was describing a shameful or morbid interest; rather, he was obviously expressing a healthy, wholesome, human reaction common to millions of well-adjusted persons in our society.”

The opinion by Reinhardt triggered a conservative dissent by Judge J. Clifford Wallace of San Diego, which was one of the most memorable exchanges of the year among 9th Circuit judges.

“It seems strange that the majority’s argument for a different sociological view of lust depends so heavily on President Carter’s personal views,” Wallace responded. “Furthermore, the majority has misinterpreted those views. President Carter characterized lust as a sin requiring divine forgiveness, not as something ‘acceptable’ in our community.”

Supreme Court Has Final Say

Siding with Wallace but ignoring President Carter altogether, the Supreme Court had the final say, telling the 9th Circuit to solve the problem by eliminating “lust” from the definition of obscenity, not by invalidating the entire statute.

Although there was a clear liberal-conservative split in the majority of the 20 reversals of 9th Circuit cases, and most of the nine other judges reversed are also regarded as liberal to moderate, the Supreme Court rejected three 9th Circuit opinions that were written by conservative judges.

The six cases in which the Supreme Court issued full opinions upholding the lower court’s rulings also showed that liberal judges are not being automatically reversed and conservatives affirmed in every case. In two cases involving opinions by Ferguson and Fletcher, the Supreme Court itself sided with a liberal position.

Fletcher was affirmed in a Montana case limiting the scope of a state’s right to tax mineral leases on Indian lands. In that case, an en banc review by 11 judges, three 9th Circuit conservatives--Wallace, J. Blaine Anderson of Boise, Ida., and Anthony M. Kennedy of Sacramento--dissented.

And in another of the Supreme Court’s decisions, Ferguson was upheld in a ruling that Western Airlines had violated age discrimination laws by refusing to allow pilots to take flight engineer jobs as they neared the age of 60.

Also reflected by the Supreme Court rulings is the fact that not all the Carter appointees can be easily categorized as liberals. The high court upheld one opinion by Judge Arthur L. Alarcon of Los Angeles, generally rated as moderate to conservative, and another by Judge William A. Norris, a Los Angeles liberal who sometimes takes conservative positions because of a strong commitment to following legal precedent.