Thank you for sharing!

Your article was successfully shared with the contacts you provided.
After much musing about what makes the 9th U.S. Circuit Court of Appeals different, one day legal scholar Arthur D. Hellman saw a Los Angeles newspaper — and knew in a flash. “It was February 1997, and the headline said ’9th Circuit Upholds Right-to-Die Law,’” recalls Hellman, a constitutional law professor at the University of Pittsburgh, who at the time was sitting on a discussion panel with the presiding judge of his own circuit, the 3rd. “We agreed that nowhere else in the country would the circuit have been named in the headline. Nowhere else could editors have thought readers would even know what circuit they were in.” And nowhere else would the identity of the court that made the ruling be almost as newsworthy as the ruling itself. By far the largest and busiest of the 13 regional circuits that stand between the federal trial courts and the U.S. Supreme Court, the western-most 9th U.S. Circuit Court of Appeals is also arguably the most left-leaning. Other circuits have their flashes of color, as anyone can attest who has phoned the clerks at the 5th Circuit in New Orleans during Mardi Gras. And however much the 9th prides itself in accessibility, it can’t compete with the 10th, which lists Colorado clerks’ home phone numbers in the front of a local rules book. But the 9th Circuit has something else: a self-awareness that feeds a public awareness and vice versa. When Judge Cynthia Holcomb Hall, urging her colleagues to put up with a plan to expedite rulings, announced tartly that “my primary goal is to get cases decided” and not “writing for posterity,” she limned the poles that must exist in every appellate judge’s mind. Only she voiced it. “All the circuits have streamlined the handling [of] smaller cases, with summary judgment motions and such. But in other circuits, the big cases are handled the way they’ve been handled for the past hundred years,” says Professor Hellman, who has written one book on the 9th Circuit and edited a second. “Perhaps because of its size, the 9th has been forced to consider who it is, what it does and why.” The 9th was the first of the circuits to do a gender-bias report, going public with the fact that 6 percent of the women lawyers in California and the circuit’s other eight states say at least one circuit judge has harassed them. RECENT REFORMS Last year at this time, a blue-ribbon Evaluation Committee — sponsored by the circuit, and including a Rand Institute researcher — weighed in with reforms. Too many intracircuit conflicts? The committee urged judges to circulate opinions just before publication so that those that break with precedent can be red-flagged. Or what about out-of-touch judges living in, say, the Sonoran Desert who can’t appreciate the effect of their rulings in the South Pacific or the Olympic rainforest? Then the circuit should require judges to travel to hear cases in the region from which a case arises. When a Supreme Court justice joined the chorus criticizing the circuit for allowing any single judge to trigger a seven-day stay in death-penalty cases by calling for en banc review, the circuit listened. “Under our rule change, it now takes a majority,” Chief Clerk Cathy Catterson says. And when the chair of the Senate subcommittee that oversees federal courts’ budgets questioned the lavishness of the 9th’s August retreats to Maui or Sun Valley, the presiding judge penciled in a convention in Portland, Ore. None of which alters the view, centered among Senate Republicans, that the circuit is a dangerously loose cannon. In what have become annual campaigns to divide the circuit into two or three — ostensibly making it more efficient while, not accidentally, limiting the influence of California environmentalists over other states’ timber, mining and fishing industries — Senator Orrin Hatch, R-Utah, condemns the appeals court as “out of control” and “judicially activist.” Administratively, the 9th does take several months longer than other circuits to dispose of cases. In 1985, the presiding judge vowed to halve the then-average, 11 months. Today it is 14 months. The major ammunition, however, for the argument that the circuit is just too oddball to be left alone came from the 1996-97 Supreme Court session. Out of the roughly 80 cases accepted for review, a startling 29 came from the 9th, and all but one was reversed. At the time, the circuit’s presiding judge said that the numbers were meaningless. But in subsequent years, he also made sure that everyone knew when the most-reversed distinction shifted to other circuits. Justice Sandra Day O’Connor was among those who suggested the circuit might be able itself to head off maverick opinions by more frequently granting en banc reviews, allowing 11-judge panels to reconsider what the standard three-judge panel has wrought. And in fact the number of en bancs has risen steadily. The Supreme Court accepted a relatively small number of 9th Circuit opinions for review in its last session, 10, but reversed nine of them. The current high court docket has 17 opinions from the circuit. Whatever the yearly fluctuations, the circuit is reversed disproportionately. It is responsible for roughly one-sixth of the cases and one-quarter of the reversals. A disproportionate number of the notorious 1996-97 session’s reversals, including the constitutional right-to-die opinion, were written by the circuit’s gleefully liberal bad boy, Judge Stephen Reinhardt. Brilliant, outspoken and highly productive, he is unrepentant about his stack of 9-0 reversals. Noting that he participates in about 500 cases a year, he likes to say: “They can’t catch them all.” THAT ‘LEFTY’ LABEL The circuit’s reputation as a nest of unreconstructed lefties dates from the late 1970s when Congress, controlled by Democrats, authorized a large class of judges to be appointed by President Carter. During the subsequent Reagan and Bush administrations, other circuits moved to the right, and the ideology of the 9th grew more conspicuous. Death penalty cases got particular attention. In one 1992 California case, the Supreme Court lifted four stays in one night before telling the appellate justices to lay off. Political analysis of the circuit can be slippery, however, and not merely because of libertarian streaks that tint many of the 9th’s clearly labeled liberals and conservatives. Nearly as many of the reversed opinions in the notorious 1996-97 session were written by Republican appointees as came from Democrats. “In the end, the typical case doesn’t involve political or ideological issues,” says Roy Weatherup, a veteran practitioner who heads the 11-lawyer appellate department at Santa Monica, Calif.’s Haight, Brown & Bonesteel. Given his clients, he says he should prefer more conservative panels with the likes of judges Alex Kozinski, Pamela Ann Rymer, Thomas Nelson and Stephen Trott. But he doesn’t mind drawing Judge Reinhardt, he insists, and would hate to see the circuit split. “As far as efficiency is concerned, now that the vacancies are filled, that problem sees to have gone away,” he says. The unpredictability of the circuit is part of its strength, says Mary A. Lehman, a full-time federal appellate practitioner in the San Diego office of Gray Cary Ware & Freidenrich. “They’re not afraid of dicta. My sense is that the other circuits are not as gutsy,” says Lehman, who is chairwoman of the Federal Bar Association’s national appellate committee. Today, the 9th and the 2nd are the circuits with a majority of Clinton appointees. They are a young and moderating group, by all accounts, and observers credit them for the increase in en banc reviews. But Hellman is among those who don’t expect the new crop to change the circuit’s reputation for vivid individualists. Maybe it’s because it’s the less-homogenized West, he says, but whatever it is, it is probably self-perpetuating. When judges like Alex Kozinski and Barry Silverman are professionally ranked magicians (Judge Kozinski also appeared once on “The Dating Game”), and Judge Trott takes out his guitar to reprise his college days’ hit folksongs, “the message to all those newcomers is: It’s all right to be different.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.