As an alumnus of the Ninth Circuit, Justice Kennedy has at times been particularly critical of that court when he thinks it has applied the law unreasonably. That was very much on display in Justice Kennedy’s majority opinion in today’s decision in Harrington v. Richter, in which the Court held that the Ninth Circuit had improperly ordered habeas relief for a convicted murderer on ineffective assistance grounds. The opinion begins with what is (for him at least) unusually strong language, accusing the Ninth Circuit of “judicial disregard” of the principles governing issuance of the writ.
[Judicial] resources are diminished and misspent, however, and confidence in the writ [of habeas corpus] and the law it vindicates undermined, if there is judicial disregard for the sound and established principles that inform its proper issuance. That judicial disregard is inherent in the opinion of the Court of Appeals for the Ninth Circuit here under review.
Justice Kennedy’s majority opinion in today’s other habeas case, Premo v. Moore, begins by noting that “[h]ere, as in Richter, the Court reviews a decision of the Court of Appeals for the Ninth Circuit granting federal habeas corpus relief in a challenge to a state criminal conviction.”
The Ninth Circuit’s opinions in both cases were written by the same judge. Anyone care to take a complete shot in the dark and guess what the name might be? But Justice Kennedy’s decision to criticize the Harrington decision so strongly does not implicate only “the usual suspects” on the Ninth Circuit bench that conservatives routinely criticize: the Harrington majority was joined by former Kennedy law clerk Alex Kozinski.
My earlier post on Harrington (back when it had been relisted a couple times, and looked like a possible summary reversal) here.