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SCOTUS and the Ninth


The large portion of the Supreme Court's workload devoted to reversing Ninth Circuit habeas decisions has been noted here on several occasions. Doug Berman at SL&P regularly "kvetches" (his term) about the excessive attention to capital cases there. Today George Will weighs in, saying, "There should be two Supreme Courts, one to reverse the U.S. Court of Appeals for the 9th Circuit, the other to hear all other cases." He goes on to discuss the Belmontes case and briefly refers to Musladin. (Hat tip: Ward.)

The root cause of this is the Ninth itself. Rogue panel decisions are supposed to be overturned by the court en banc, but that almost never happens in the Ninth when the error favors the prisoner. The answer is to appoint enough persons of sense to the Ninth that they constitute a clear majority over Judge Reinhardt, et al. Then the court could clean up its own messes rather than having the Supreme Court devote an inordinate portion of its workload to doing so.

There are two vacancies on the Ninth and two stalled nominees for them. Come January, it will be impossible for any nominee to be confirmed on a party-line vote, so the Senate should proceed directly to an up-or-down vote. Citizens of Nevada, who have suffered as much as anyone under the Ninth, should write Senator Reid and insist on it.


See George Will's innovative suggestion (11/16). Instead of splitting the 9th, split the US Supreme Court--one Court to hear appeals from the 9th and the other Court to hear appeals from all of the other courts.

With respect to Belmontes, Reinhardt and Paez can take comfort that their position garnered 4 votes. What is truly unfortunate about Stevens' dissent is not that he thought the instruction problematic and voted the way he did, but that his opinion gave cover to the actions of the Ninth in this case.

Had Stevens been intellectually honest, he would have written that he thought Boyde wrongly decided instead of saying that the dissent was consistent with Boyde. That would have taken away any cover for Reinhardt and Paez--since they are not at liberty to subvert Supreme Court precedent. Instead, Justice Stevens and his cohorts gave cover for judicial defiance. Given Justice Stevens' statements about the importance of the rule of law (See e.g., Bush v. Gore), his giving cover to the judicial defiance of Reinhardt and Paez is remarkable.

I guess judicial defiance is ok if it advances the cause of a brutal murderer. An interesting set of priorities.

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