It was another bruising year for the liberal judges of the U.S. 9th Circuit Court of Appeals as the Supreme Court overturned the majority of their decisions, at times sharply criticizing their legal reasoning.
Appeals from the nine Western states of the circuit dominated the high court’s docket, as usual, supplying more than 30% of the 84 cases taken up by the justices during the term that ended last month.
The Supreme Court reversed or vacated 19 of the 26 decisions it looked at from the 9th Circuit this judicial term, issuing especially pointed critiques of the court’s handling of cases involving prisoners’ rights and death row reprieves.
Although the proportion of reversals was relatively in line with past years and other appellate circuits across the country, the 9th Circuit was often out of step even with the high court’s liberal justices, who joined with the conservatives in 12 unanimous rulings.
In their reversals, the justices often expressed impatience with what they see as stubborn refusal by the lower court to follow Supreme Court precedent. One of the circuit’s most renowned liberals, Judge Stephen Reinhardt, was seen by judicial analysts as the main target of the justices’ pique.
“It just seems that they are getting a bit frustrated with these criminal procedure cases,” said Barry McDonald, a constitutional law professor at Pepperdine University, referring to unanimous reversals of three opinions written by Reinhardt and a decision by another 9th Circuit panel to strike the conviction of a Sacramento rapist who claimed racial bias during jury selection.
In restoring Steven Jackson’s conviction for raping a 72-year-old woman, the high court called the 9th Circuit decision written by Judge Johnnie B. Rawlinson and joined by two other Democratic appointees “as inexplicable as it is unexplained.”
Reinhardt, named to the 9th Circuit by President Carter, penned opinions that ordered parole for a life prisoner denied release by California state courts and granted writs of habeas corpus for two murder convicts on grounds that their defense attorneys had been ineffective.
Reinhardt said he didn’t feel personally reprimanded because the justices often employ strong language to express their disagreement, usually with one another.
“If anything, it’s a compliment. I get treated like the others on the [Supreme] Court,” he said in an interview with The Times.
The Supreme Court’s conservative majority has been changing the law in habeas corpus and other constitutional protections, but the circuits have to follow existing law until those changes are explicit, Reinhardt said.
“It would be easy not to get reversed if you just tried to guess what five of nine justices were going to say about the case,” he said. “If you follow the law the way it is, before they change it, you’re going to get reversed.”
The high volume of 9th Circuit cases taken up for review is partly explained by the circuit’s sheer size, legal experts say. The circuit, one of 13, covers 20% of the nation’s population and handles the same proportion of the federal caseload.
But the justices do tend to watch the 9th Circuit more closely, McDonald said.
“It’s no secret that the 9th is heavily Democratic,” he said of the bench where 27 judges were named by Democratic presidents and 18 by Republicans. “The Supreme Court has five justices with a conservative bent, so it’s not surprising that value-laden rulings from the 9th Circuit often clash with the conservative majority of the Supreme Court.”
Erwin Chemerinsky, UC Irvine law school dean, sees the focus on the 9th Circuit as a reflection of the region’s diversity. Immigration issues from Arizona, capital inmates’ habeas corpus petitions from California’s teeming death row, environmental disputes and labor-management conflicts arise more often in a judicial region stretching from Montana to Alaska and Hawaii, he noted.
“Reversal rates have no meaning whatsoever,” said Chemerinsky. “If the Supreme Court overrules the 9th Circuit, it doesn’t mean that the 9th Circuit was wrong and the Supreme Court was right. It means the Supreme Court had the last word.”
Many of the cases giving rise to reversal involve the two courts’ differing views on the 1996 Anti-Terrorism and Effective Death Penalty Act, passed by Congress to speed the appeals process for capital convictions. It requires appeals court judges to give “deference” to the decisions made by judges and juries at the trial court level. The 15-year-old statute is often in dispute because it was “poorly drafted,” Chemerinsky said.
In the case of California death row inmate Scott Pinholster, the Supreme Court by a 5-4 vote reversed the 9th Circuit’s decision to vacate the Van Nuys man’s death penalty after considering new testimony about brain damage he sustained as a child.
Coupled with other Supreme Court rulings this term that halted class-action lawsuits against Wal-Mart and AT&T, the Pinholster ruling showed that the justices are “systematically closing the courthouse door” to capital prisoners and those attempting to sue Big Business, Chemerinsky said.
The Supreme Court typically reverses about 75% of the cases it reviews each year, having selected them because they raise important questions of law or to resolve the internal contradictions created when circuits come to different conclusions about the same legal question. The 9th Circuit’s track record tends to be above average most years: two years ago, 94% of the circuit’s cases were reversed.
While the 9th Circuit remains predominantly Democrat-appointed, the composition has shifted since President George W. Bush named seven conservative jurists to the court. President Obama, by contrast, has succeeded in getting only one of the appeals court’s four vacancies filled since he took office.
The conservative faction on the 9th Circuit is often outvoted when the full court is asked to rehear a divisive case. But they have been getting the Supreme Court’s attention — and intervention — by banding together to write dissenting opinions.
Judge Diarmuid F. O’Scannlain, named to the 9th Circuit by President Reagan, is a frequent author of the red flags sent to the justices in Washington.
“If there is going to be a change in the interpretation of a constitutional provision or statutory provisions, that’s the province of the Supreme Court, and the Supreme Court has told us any number of times that our job is to apply existing Supreme Court interpretation,” said O’Scannlain, who prides himself on usually being on the vindicated dissenting side when the high court reverses 9th Circuit decisions.
Asked if he writes or joins the dissents with an eye to calling the justices’ attention to a ruling he disagrees with, O’Scannlain said: “We hear anecdotal evidence that they are not ignored.”