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9th Circuit Racks Up Usual High Reversal Rate in Supreme Court Term
Even conservative Judge Pamela Rymer paid a price for hewing closely to precedent
The Recorder
June 30, 2008
Ninth Circuit U.S. Court of Appeals Judge Pamela Ann Rymer
Image: Veronica Weber / The Recorder
The U.S. Supreme Court's favorite targets on the 9th U.S. Circuit Court of Appeals are well known: Judges Stephen Reinhardt ... Betty Fletcher ...
And Pamela Rymer?
In the term concluded Thursday, Rymer had the misfortune of being reversed twice, tying colleague Judge Raymond Fisher in number of opinions overturned by the Washington Nine.
All told, the 9th Circuit was reversed in eight of the 10 cases reviewed, about par for the course for the nation's largest, and most closely scrutinized, circuit.
Rymer's showing might seem surprising. She is, after all, a George H.W. Bush appointee, and a well-regarded conservative.
"Pam Rymer is talked about as a potential Republican nominee to the Supreme Court, and deservedly so," Hastings College of the Law professor Rory Little said. "She's a very talented judge."
Rymer hews closely to precedent. And that's what got her into trouble. Start with U.S. v. Ressam, 08 C.D.O.S. 5976. Customs arrested Ahmed Ressam bringing explosives into the country in a plot to blow up Los Angeles International Airport. Rymer threw out one of the counts against Ressam following a precedent penned by then-9th Circuit Judge Anthony Kennedy, whose seat Rymer now holds. That created a circuit split.
"Unlike our colleagues in other circuits, we do not write on a clean slate," Rymer wrote.
A group of 9th Circuit conservatives, led by Judge Diarmuid O'Scannlain, railed against the opinion in a dissent to denial of en banc review. The Supreme Court responded, and now-Justice Kennedy joined an 8-1 majority throwing out Rymer's ruling last month. Justice Stephen Breyer was the lone dissent.
The other Rymer opinion to crumble on the shoals of Maryland Avenue came in a tax case, Boulware v. United States, 08 C.D.O.S. 2490, in which Rymer again created a circuit split by following 9th Circuit precedent. Judge Sidney Thomas wrote in a concurrence that he fully agreed with Rymer's analysis, but had the slate been clean, he would have followed the 2nd Circuit's analysis. Which is exactly what the Supreme Court did -- by a 9-0 vote.
Three months ago, the justices reversed Fisher's opinion upholding a challenged blanket primary election system in Washington state. The 9th Circuit panel had been unanimous, and in a strange Supreme Court constellation, Justice Clarence Thomas wrote the majority opinion in Washington State Grange v. Washington State Republican Party, 08 C.D.O.S. 2995, while Justices Anthony Kennedy and Antonin Scalia dissented.
Fisher had plenty of company for his other reversal this term: Eleven judges joined his en banc opinion upholding a California law that barred employers who receive state funds from using that money for or against unionizing efforts. The Supreme Court voted 7-2 to reverse the ruling on pre-emption grounds earlier this month, with Justice John Paul Stevens writing for the majority, in Chamber of Commerce v. Brown, 08 C.D.O.S. 7548.
The justices handed down the 10th and final 9th Circuit case of the term, Morgan Stanley Capital Group Inc. v. Public Utility District No. 1 of Snohomish County, Thursday, though it was overshadowed by the high court's gun case.
The 5-2 ruling, written by Justice Antonin Scalia, gave the circuit its second affirmance of the term but rejected Judge Martha Berzon's reasoning.
