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While in Sun Valley, Idaho for a judicial conference a few years ago, U.S. Supreme Court Justice Sandra Day O’Connor suggested the 9th U.S. Circuit Court of Appeals take more cases en banc to cut down on the court’s dismal reversal rate. The court took the advice, and O’Connor opined Tuesday that the move has reduced the workload of her brethren. Last session, the Supreme Court heard just 10 9th Circuit appeals. Now, she has another idea. Seated for an informal question and answer session at the 2000 9th Circuit Judicial Conference, O’Connor suggested the court circulate draft opinions among judges before they are released. “Probably you ought to at least think about or discuss the notion of circulating more draft panel opinions and seeing if there is some hue and cry out there,” O’Connor said. O’Connor’s idea came in response to a question from 9th Circuit Judge Margaret McKeown, asking how her court fared with the Supreme Court this year. O’Connor refers to it as “the report card question.” “I always know I’m going to get this question,” she said. “So do we,” McKeown joked. While O’Connor said “it’s never been a totally encouraging report,” she added that in the last session the Supreme Court granted just 1.4 percent of petitions for certiorari from the 9th Circuit. “I have to say, ‘Why?’ Is it possible that your use of more en banc procedures is responsible? I think that’s possible,” O’Connor said. The panelists, which included McKeown, Central District of California Chief Judge Terry Hatter Jr., Heller Ehrman White & McAuliffe partner Peter Benvenutti, and Stanford Law School dean Kathleen Sullivan, also asked O’Connor about the Supreme Court’s last term, which has been called a blockbuster by pundits. Several rulings, including those on gays in the Boy Scouts, partial-birth abortions and Miranda warnings, caught national headlines. “It’s not surprising the news media have seized upon issues which are easy for the general public to understand,” O’Connor said. “We did have an unusually high number of those kind of cases last term.” But, she added, “I’m not sure many of them broke precedent.” Instead, she pointed to a lesser known decision, Aprendi v. New Jersey, 99-478, a hate crime case she said “may affect the work of the judges … to an extraordinary degree.” The mere mention of the case brought a stir from the audience. “I wrote my heart out in the dissent,” O’Connor said. The ruling held that juries, not judges, must determine the facts that increase many criminal sentences. “While that wasn’t a headline grabber, it’s going to be a work grabber in the federal courts, I suspect,” O’Connor said. She also bristled at a question from Hatter after he mentioned that O’Connor is a swing vote on the court, which is beginning to be an issue in the upcoming presidential election. “Chief Judge Hatter, you’ve been reading too many newspapers,” O’Connor said. “I get a little impatient with that description.”

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