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Reinhardt's Report Card: At Supreme Court, Success Amid SlapdownsFewer Ninth Circuit cases went up on appeal this term, and only two were affirmed. But the blockbuster Prop 8 case ultimately gave liberals the desired result — wedding bells in California.
2013-06-28 03:36:18 PM
SAN FRANCISCO — Ninth Circuit Judge Stephen Reinhardt still wears a red flag on his robe at the U.S. Supreme Court.
The leading liberal voice of the Ninth Circuit either authored or participated in half of the Ninth Circuit decisions that were reversed or vacated by the U.S. Supreme Court in the 2012-13 term.
But Reinhardt had the last laugh on the historic issue of same-sex marriage. While the high court vacated his Proposition 8 decision due to standing, it adopted much of his reasoning in a companion decision that struck down the federal Defense of Marriage Act.
"Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples," Reinhardt wrote last year in Perry v. Brown.
"The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the states," Supreme Court Justice Anthony Kennedy wrote Wednesday in U.S. v. Windsor.
Overall, the high court gave the Ninth Circuit a longer leash in the term just ended. The high court reviewed only 14 cases from the circuit, the fewest in five years. But 12 decisions were reversed or vacated, a rate of 86 percent — higher than the overall rate of about 70 percent for all Supreme Court decisions.
Nine of those 12 reversals came by unanimous vote, including three habeas corpus decisions there were issued without oral argument.
While those smackdowns suggest that some panels of the court are still out of step with the Supremes, especially on habeas, two scholars who follow the court say it was a good year on the whole.
"I don't think the Ninth Circuit did too badly this term," said UC-Hastings professor Rory Little. "Take out the habeas cases and they did pretty well."
"What stands out is what didn't happen," said University of Pittsburgh law professor Arthur Hellman. "The Ninth Circuit cases did not occupy a disproportionate share" of the Supreme Court's docket.
Hellman credits the court's en banc review process with smoothing some of the rough edges off the court's jurisprudence. The court's conservative judges banded together to overturn several liberal panel decisions that could well have drawn attention this term from the right-leaning high court, he said.
But Hellman sees this process shifting, with the court more recently voting to review en banc conservative panel decisions. If the makeup of the Supreme Court remains unchanged, he says, "this term might have just been a calm before the storm."
A FAIR SHARE
The U.S. Court of Appeals for the Ninth Circuit is far and away the largest federal appellate court, hearing nearly one-third of all appeals brought in the regional circuits. The Supreme Court grants cert in only a tiny fraction of its cases, but the proportion and its reversal rate have tended to run high relative to other regional circuits, contributing to its reputation for leaning left of the high court.
There are signs the Ninth Circuit is falling more into line. Last year's reversal rate was lower, and dissents from denial of en banc review — where Ninth Circuit judges essentially campaign for Supreme Court intervention — have trended down the past couple of years.
"I don't think the Ninth Circuit is the magnet it once was," says UC-Hastings' Little.
Each year the Ninth Circuit reconsiders about 15 to 20 of its most difficult cases en banc, and the Supreme Court continued a pattern of deferring to those decisions this term. The court directly reviewed only one en banc decision — Judge Sandra Ikuta's opinion invalidating parts of Arizona's voter ID law in Gonzalez v. Arizona — and affirmed it.
The high court also indirectly overruled a 2011 en banc decision on sentencing. Justice Elena Kagan's opinion in Descamps v. United States criticized an en banc panel led by Ninth Circuit Judge Jay Bybee. "Usually, it's a conservative Supreme Court justice saying the Ninth Circuit's too liberal," Little said. "Here it was a liberal justice saying the Ninth Circuit is too conservative."
But Bybee and the court's other conservatives might have spared the Ninth Circuit more reversals by overturning liberal panel decisions before they could reach Washington, Hellman says. He cites for one example Veterans for Common Sense v. Shinseki, in which Bybee wrote that courts could not force the Veterans Administration to accelerate the processing of mental health claims. Had the original 2-1 decision by Judge Reinhardt against the VA stood, it would have been a prime candidate for high court review, Hellman says.
In the past year, Hellman is seeing the court vote to reconsider conservative panel decisions en banc. Although still awaiting rulings, Hellman notes that President Barack Obama has appointed five new members to the court, and speculates that en banc outcomes may tilt more toward the left in coming years. If so, "We may see a return of the expected pattern in a couple of years" at the Supreme Court.
While the high court took fewer Ninth Circuit cases this term, it decided many of them emphatically. Nine of the 12 reversals came by unanimous vote, including three in summary fashion.
"The really interesting story is the number of unanimous reversals," said Horvitz & Levy partner Jeremy Rosen, who runs Pepperdine University School of Law's Ninth Circuit Appellate Advocacy Clinic.
Reversal rates can vary substantially based on a 5-4 ruling here or there, Rosen says. Repeated 9-0 reversals means that "certain panels of the Ninth Circuit are out of step with the Supreme Court and just aren't following its precedents."
Where that's happening most often in habeas corpus cases. The Supreme Court issued unanimous reversals in all five habeas cases it took from the Ninth Circuit. Reinhardt had a role in all five, authoring three and concurring in two others.
Rosen says all the blame cannot be pinned on Reinhardt. "It's definitely fair to say he's outside the mainstream of the Supreme Court, even the more liberal members of the Supreme Court," he says. "But he has to get one more vote" to decide a case.
"Is Judge Reinhardt a red flag for the Supreme Court? The answer is yes," says Hastings' Little. But, he adds, the Ninth Circuit reviews far more state court judgments than the Supreme Court, seeing firsthand the impact of overloaded dockets on decision making. "It's actually unsurprising that the more you look at state court judgments, the more hardened your view is going to be," he said.
In the challenge to California's ban on same-sex marriage, Reinhardt wrote the majority opinion striking Prop 8 from the books. While the Supreme Court vacated the majority decision Wednesday, the effect was to leave in place an injunction that declared Prop 8 unconstitutional.
"He's perfectly happy to let the district court opinion be the last word," Little surmised.
And in Windsor, the DOMA case, the high court made clear that, while it isn't yet ready to declare a constitutional right to same-sex marriage, Congress cannot make laws that disfavor it.
Which is almost exactly what Reinhardt said last year when his conservative colleagues complained that the court should have taken the case en banc.
"In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage," Reinhardt wrote in a concurrence to the denial of en banc review. "That question may be decided in the near future, but if so, it should be in some other case, at some other time."
Contact the reporter at firstname.lastname@example.org.