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Ninth Circuit Goes 1-11 Before Justices Who View Law Differently

July 2, 2021, 8:45 AM

The U.S. Court of Appeals for the Ninth Circuit went 1-11 in argued Supreme Court cases this term, including unanimous rejections of the San Francisco-based circuit’s approach on immigration and tribal police stops.

The lopsided record, capped by end-of-term rulings on voting rights and donor disclosure, isn’t unusual for the Ninth. The nation’s largest circuit, encompassing California and eight other states, has long been a conservative target for its perceived liberal rulings. Nor is it atypical for the justices to reverse lower court rulings: other circuits with fewer cases at the high court this term finished with 100 percent reversal rates.

Still, the Ninth circuit’s track record this term suggests its judges remain out of step with the Supreme Court even after 10 Donald Trump appointments to the 29-member court shifted its membership somewhat to the right.

“The Ninth Circuit just has a different way of looking at the law,” said Arthur Hellman, professor emeritus at University of Pittsburgh School of Law.

“There is something in the air or in the water,” said Hellman, a federal courts scholar focused on the Ninth Circuit. “The judges collectively look at the legal world differently than the Supreme Court.”

Out of Step

Among the unanimous rejections was Justice Stephen Breyer’s 9-0 opinion in United States v. Cooley, in which the high court questioned the “workability” of the circuit’s rules for tribal police officers stopping and detaining people driving through reservations. “Whether, or how, that standard would be met is not obvious,” Breyer wrote.

On immigration, Justice Sonia Sotomayor authored the unanimous ruling for the government in United States v. Palomar-Santiago, reasoning that “the Ninth Circuit’s interpretation is incompatible with the text of” the law at issue. In Garland v. Ming Dai, Justice Neil Gorsuch began his opinion for the court by noting that “the Ninth Circuit has long applied a special rule in immigration disputes.” He said the rule “cannot be reconciled” with the immigration provision at issue.

The full Supreme Court likewise reversed the circuit’s rulings against Facebook and for the Federal Trade Commission, and summarily reversed the circuit—without full briefing or argument—in disputes over habeas corpus and property rights.

“The rising number of unanimous reversals (including summary reversals on settled issues of federal law) certainly suggests that the Ninth Circuit either tends to ignore Supreme Court precedent or is reluctant to correct errors en banc,” said Cory Andrews, general counsel and vice president of litigation for the Washington Legal Foundation. The free-market foundation filed amicus briefs on the winning side of several cases from the Ninth Circuit this term.

SCOTUS v. Ninth Circuit

Immigration is one issue in particular on which the circuit and the high court have disagreed. “A lot of the reversals have been in immigration cases where the Ninth Circuit overall is more progressive than the Supreme Court,” said Berkeley law dean Erwin Chemerinsky. He cautioned against evaluating appeals courts by their Supreme Court reversal rates, and said the Ninth Circuit’s rate isn’t particularly notable when taking into account the overall rate.

Several other circuits with fewer cases at the high court this term—the First, Fourth, Sixth, Seventh, Tenth, D.C., Federal, and Armed Forces—finished with 100 percent reversal rates, according to SCOTUSblog.

The Ninth Circuit avoided a shutout in a significant case, when the justices unanimously affirmed the appeals court in the closely-watched NCAA antitrust dispute over education-related compensation.

Easha Anand, Supreme Court and appellate counsel for the MacArthur Justice Center, said the circuit’s track record this term “tends to say more about where the Supreme Court is than where the Ninth Circuit is.” She clerked for Ninth Circuit Judge Paul Watford as well as Justice Sotomayor.

Anand said this term “isn’t so much worse than in prior years or than other circuits; it’s the nature of the cert. grant process that cases where cert. is granted tend to result in reversals.”

Goodwin Procter’s William Jay, who clerked for Ninth Circuit Judge Diarmuid F. O’Scannlain and Supreme Court Justice Antonin Scalia, said the Ninth Circuit’s size lets dissenting judges call more attention to cases.

“After all,” he said, “the Ninth Circuit is the only place where nine or more judges can dissent from the refusal to rehear a case. Anywhere else, that’s plenty. And a 13-judge dissent (or even nine or 10) definitely helps draw attention to a certiorari petition.”

Ninth Circuit appeals also split the justices along party lines—or nearly so—in the court’s end-of-term rulings and others.

In Tandon v. Newsom, the three Democratic appointees dissented, as did Chief Justice John Roberts. The Democratic-appointed trio also dissented from a habeas corpus summary reversal. The same 6-3 breakdown happened in Cedar Point Nursery v. Hassid, in which the Republican-appointed majority reversed a Ninth Circuit ruling that endorsed a California regulation letting union organizers access private property.

More starkly showing the impact of Justice Amy Coney Barrett’s replacement of Ruth Bader Ginsburg, the court split 5-4—with Justice Clarence Thomas dissenting, joined by the three Democratic appointees—in TransUnion v. Ramirez, which makes it more difficult for plaintiffs to bring lawsuits.

On the habeas reversal, Anand said there wouldn’t have been the votes to summarily reverse with Ginsburg on the court. On TransUnion, Anand said she’s nearly certain that Ginsburg “would have joined the dissenters to flip.”

—With assistance from Madison Alder

To contact the reporter on this story: Jordan S. Rubin in Washington at