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For the record, the 9th U.S. Circuit Court of Appeals’ reversal rate this year was respectable. But that’s almost beside the point. On Monday, the U.S. Supreme Court dispatched the last 9th Circuit case of its 2002-2003 term with a 5-4 ruling striking down a California law aimed at making it easier for Holocaust victims to track down missing insurance policies. Though the high court still has a few blockbuster cases on its plate, the results for the 9th Circuit are now in. The nation’s largest — and most controversial — appeals court was reversed 14 times and affirmed five, with two that defy classification. But more than in the past, what became evident this year is that the 9th Circuit dominates the Supreme Court’s docket in a way that few other courts ever have. The 9th Circuit accounted for 38 percent of the Supreme Court’s certiorari grants in cases originating in federal court, and more than a quarter of all the cases argued and set for decision this term. Observers say the high number may be a function of their high reversal rates in the past — the 9th Circuit is simply under closer scrutiny. “They dominate. They are the elephant in the room when it comes to the Supreme Court’s federal docket,” said Thomas Goldstein of Washington, D.C.’s Goldstein & Howe, whose practice focuses on the Supreme Court. “I think it means that there remains an extra-watchful eye on the 9th Circuit. It’s too big to be a coincidence.” That eye can still be jaundiced at times. Four times this term, the 9th Circuit was summarily reversed. That didn’t happen — even once — to any other federal appeals court. The 9th Circuit hears about 20 percent of federal appeals nationwide, and in the last two terms it has provided 24 percent of the federal case docket. “The Court is taking about twice what you would expect,” said Arthur Hellman of the University of Pittsburgh School of Law, who follows the 9th Circuit closely. The high number, Hellman said, has “been true for some years now and it’s probably going to be true again next year.” The Court has already granted cert in 10 9th Circuit cases for the October term, with well over half its docket yet to be filled. The authors of the five rulings affirmed by the high court were Judges Alex Kozinski, Kim Wardlaw, A. Wallace Tashima, Margaret McKeown and Senior Judge David Thompson. Kozinski and Thompson are Ronald Reagan appointees; the others are Bill Clinton judges. McKeown and Wardlaw were writing for en banc majorities over the dissent of the court’s conservative wing. McKeown’s opinion, on jury instructions in sexual harassment suits, was affirmed unanimously — a rare feat for the 9th Circuit. Suffering notable reversals were Judges Stephen Reinhardt and Richard Paez. Reinhardt had struck down Alaska’s sex-offender registration law, while Paez had voided as cruel and unusual a 50-years-to-life sentence in a three strikes case. Another notable was Judge Ronald Gould, who dissented in three cases the Supreme Court picked up. That’s usually a sign that the high court is paying attention to a judge’s dissents, but Gould’s record was mixed. One case was affirmed, one was reversed, and one can’t properly be called either. The term got off with a bang for the 9th Circuit, and not in a good way. The Supreme Court summarily reversed it in three cases the very first day of the term. Two of the cases involved a consistent bone of contention between the 9th Circuit and another big player in this year’s term, the California attorney general’s office. The issue was habeas corpus review, and the Supreme Court chastised the 9th Circuit for scrutinizing state court decisions too closely, to the benefit of the convicted. The AG’s win on the summary reversals was significant and fostered some intra-circuit tension during the year. It also was the first big win for the office under Manuel Medeiros, the state’s first-ever solicitor general. Medeiros and the AG would go on to claim several more reversals of the 9th Circuit, including Lockyer v. Andrade, 03 C.D.O.S. 1970, the three strikes case. Even with the wins, though, the term will also be remembered for the battles over Medical Board of California v. Hason, 279 F.3d 1167, which asked whether Congress properly abrogated state sovereign immunity in Title II of the Americans with Disabilities Act. After meeting with disability rights advocates, California Attorney General Bill Lockyer first asked the Court to make a limited ruling and later asked that the case be removed from the docket altogether. Lockyer Chief Deputy Peter Siggins wrote an unusual office memo explaining what happened. Joel Davis, the deputy attorney general assigned to the case, took his name off the brief and later criticized Lockyer in a newspaper editorial. Lockyer fired back with his own piece. Despite the turmoil, the episode may not hurt Medeiros’ reputation with the Court. “I don’t think it causes any lasting damage,” Goldstein said. “They understand the political nature of the process sometimes.” The AG’s success in criminal cases is no surprise. Hellman said the most consistent source of reversals is when the Supreme Court sides with the government rather than the 9th Circuit. “Where the U.S. Supreme Court disagrees with the 9th Circuit, it almost always turns out to be a case where the 9th Circuit has ruled against the government,” Hellman said. But, he pointed out, there are a number of criminal cases where the Supreme Court denied cert. The 9th Circuit was also the launching pad for a case that proved to be one of the biggest surprises of the year. In May, the Supreme Court upheld the Family Medical Leave Act, aimed at equalizing gender treatment in the workplace. What was expected to be an extension of the Court’s jurisprudence against the abrogation of state’s rights became a chance for Chief Justice William Rehnquist to soften his Court’s skepticism of congressional power. Tashima wrote the 9th Circuit decision, while Judge Marsha Berzon — who fought for women’s rights during a lengthy career in private practice — contributed a passage analyzing one of the purposes of the FMLA. Rehnquist agreed with the 9th Circuit in Nevada Dept. of Human Resources v. Hibbs, 03 C.D.O.S. 4388, saying the law was enacted for a compelling governmental purpose. Monday’s case was another big one. In American Insurance Association v. Garamendi, 03 C.D.O.S. 5353, the Court struck down a California law requiring insurance companies doing business in the state to disclose the names of any residents who had Holocaust-era insurance policies. The state law was enacted in response to criticism that an international body established to help resolve the claims was moving too slowly in publishing lists of qualified policies. The government argued that the California law interfered in foreign affairs, and the Supreme Court agreed. “The law merely asks that insurance companies that choose to do business in California embrace a basic American value by taking responsibility for their actions,” Attorney General Bill Lockyer said in a statement. “The court’s sweeping opinion casts doubt on the fate of other state laws currently being challenged in court that seek to achieve the same objective.” Leslie Tick, an attorney with the California Department of Insurance, said the state will continue to work with the international body to identify policies. While the international treaty only asked insurance companies to identify unpaid claims belonging to victims of the Holocaust, California asked for the identity of all claimholders. The state reasoned that individuals and their families, rather than the insurance companies, were in a better position to identify who was victimized by the Holocaust. “The California law required much more,” Tick said. The Supreme Court did not say which approach was better, but did point out that “California seeks to use an iron fist where the president has consistently chosen kid gloves.” Related chart: Under the Microscope

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