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Is the Ninth Circuit Due for Environmental Correction?

By on June 20, 2012 10:05 am in Environment, Ninth Circuit Smackdown (Again), Supreme Court

Will 2012 provide a repeat of 2008? Specifically, will the Supreme Court’s October 2012 term find the Supreme Court repeatedly reversing the U.S. Court of Appeals for the Ninth Circuit in environmental cases as it did in the October 2008 term? In 2008, the Supreme Court heard an unusually high number of environmental cases, six: Winter v. Natural Res. Def. Council, Summers v. Earth Island Inst., Entergy Corp. v. Riverkeeper Inc., Coeur Alaska, Inc. v. Se. Alaska Conservation Council,Burlington N. & Santa Fe Ry. Co. v. United States and Shell Oil Co. v. United States (the latter two of which were consolidated). In all of these cases, the side favored by environmental groups had prevailed below, and in all of these cases the Supreme Court reversed. Equally notable, however, was that all but one of these cases (Entergy) came from the Ninth Circuit. To some the Supreme Court’s October 2008 term showed the Roberts Court lacked sympathy for environmentalist positions. To others, it was further evidence the Ninth Circuit was out of step on environmental issues.

2012 could provide a repeat of 2008 because the Supreme Court is being asked to grant cert in several cases from the Ninth Circuit that are potential outliers in environmental law.  As Richard Frank notes at Legal Planet, the Court will consider the such cases in tomorrow’s conference — Pacific Merchant Shipping Assn. v. Goldstene, Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center (along with Decker v. Northwest Environmental Defense Center, another petition from the same case), and Los Angeles County Flood Control Dist. v. Natural Resources Defense Council —  all three of which have been identified among SCOTUSBlog’s “Petitions to Watch.”   Of note, the Solicitor General has recommended against cert in all three [...]

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Re-Post: Bench Memos and the Ninth Circuit

By on October 24, 2011 5:18 pm in Ninth Circuit Smackdown (Again)

Newt Gingrich has some recommendations for reforming the Ninth Circuit:

“Congress can say, ‘All right, in the future, the Ninth Circuit can meet, but it will have no clerks,’ ” Mr. Gingrich told the Values Voter Summit. “ ‘By the way, we aren’t going to pay the electric bill for two years. And since you seem to be rendering justice in the dark, you don’t seem to need your law library, either.’ ”

I don’t know if Gingrich is serious, but his first comment reminds me of a somewhat related post from 2004 that I thought might be worth reposting: Bench Memos and the Ninth Circuit. I have reprinted it below.
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[W]hy is it that an unusually high number of Ninth Circuit decisions can be characterized as outliers? I am interested less in the occasional high-profile opinions than in the run-of-the-mill cases. In my experience, at least, it is not uncommon to research a legal issue and find cases from several circuits all holding one way, and then a Ninth Circuit decision going the other way. Why is that? Proponents of dividing the Ninth Circuit often point to the court’s size, but I have a pet theory: the problem with the Ninth Circuit isn’t so much its size as its bench memos.

First, a bit of background. The usual practice on the Court of Appeals is for each of the three judges on an appellate panel to task one of his or her law clerks to author a bench memo for each case. (A bench memo is a memorandum from a clerk to a judge explaining the facts of the case, the lower court decision, and the relevant precedents, as well as recommending a rationale for resolving the appeal.) Some judges do not require formal bench memos, but [...]

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Ninth Circuit Smackdown Watch

By on October 5, 2010 3:52 pm in Ninth Circuit Smackdown (Again), Supreme Court

Lawrence Hurley of the Daily Journal reports that fully one-third of the cases on the Court’s docket thus far this term — 18 of 54 — are from the U.S. Court of Appeals for the Ninth Circuit. (Hat tip: How Appealing)  Given that the Supreme Court is a bit more likely to reverse than to affirm, it would seem the Ninth Circuit is in for its share of smackdowns in OT 2010.

UPDATE: According to Ed Whelan, if one excludes cases on the docket that are appeals of state high courts, and includes an appeal of a decision by a three-judge  panel in California, the Ninth Circuit accounts for nearly 40 percent of the relevant cases, even though the Ninth is responsible for only 20 percent of the cases heard by federal appellate courts. [...]

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Relist Watch #2: Harrington v. Richter, the Ninth Circuit, and Ineffective Assistance

By on February 16, 2010 4:04 pm in Criminal Procedure, Ninth Circuit Smackdown (Again), Supreme Court

It’s still too early to have much of an idea what the Supreme Court might be doing in Harrington v. Richter, 09-587—but that won’t stop me from blathering about it anyway. The Court has relisted only twice, at the January 15 and 22 conferences, and it has not yet called for the record. But Richter is in some ways a stereotype of a summary reversal candidate: it’s from the Ninth Circuit (check), the opinion reverses a murder conviction on habeas (check), there’s a vigorous dissent from a conservative judge (Judge Jay Bybee, joined by Judges O’Scannlain, Kleinfeld, and Ikuta–check), and perhaps most importantly of all, the author of the majority opinion is liberal lion Judge Stephen Reinhardt (check).

It is often repeated that Judge Reinhardt has said of the Supreme Court, “They can’t catch ‘em all.”  Whether he said it or not, the Justices now act as if they must try. Thus, if you search “Reinhardt” just on this webpage, you get (among other entries) “Reinhardt Reversed in Buttons Case,” “Supreme Court Opens Term with Reinhardt Reversal,” “Reinhardt Reversed for Third Time in Same Case,” and the not-quite-as-snappily-titled “First Opinion in an Argued Case in OT08” (“the Court reversed a Ninth Circuit panel of Reinhardt, Betty Fletcher, and Dorothy Nelson”). Reading about these cases gives one an extreme form of déjà vu, more aptly described as Groundhog Day Syndrome.

There’s one thing about Harrington v. Richter that makes this case a bit more unusual as a summary reversal candidate: it’s a decision of the en banc court, or at least an en banc panel under the Ninth Circuit’s en-banc-lite procedure. But the evident importance that moved the Ninth Circuit to take the case en banc and the greater visibility and influence of such opinions makes it more likely [...]

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McDaniel v. Brown

By on January 11, 2010 11:09 am in Ninth Circuit Smackdown (Again)

It’s dog-bites-man at the Supreme Court today. The Court once again has summarily reversed the Ninth Circuit in a habeas case. Today’s decision is here: McDaniel v. Brown. The Ninth Circuit’s divided decision (authored by Judge Wardlaw and joined by Judge Hawkins, with Judge O’Scannlain dissenting) is here.

Our blogging software asks us to put our posts in “categories.” In light of how often the Supreme Court summarily reverses the Ninth Circuit in habeas cases, I am adding a new category: “Ninth Circuit Smackdown (Again).” [...]

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