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USCA9 Getting the Message?

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Judson Berger has this story at Fox News on the recent spate of unanimous reversals of the Ninth Circuit by the US Supreme Court.

The Supreme Court may be sending a message to one of the country's most liberal appeals courts, unanimously overturning five consecutive cases out of the 9th Circuit in less than a week.
Will they get the message?

Today, the US Court of Appeals for the Ninth Circuit issued this order in Miller v. Oregon Parole Board, No. 07-36086:

The Opinion filed on January 18, 2011, and reported at ___ F.3d ___ (9th Cir. 2011), 2011 WL 135041, is hereby withdrawn and vacated.

Within 14 days of the filing of this Order, each party shall submit a letter-brief addressing what effect, if any, the United States Supreme Court decision in Swarthout v. Cooke, 562 U.S. ____ (2011) has on this matter. The letter-briefs shall not exceed five pages.

The court will file a new disposition in due course.
Apparently getting told "none of your damn business" by the Supreme Court does have some effect.  Okay, the high court didn't actually say "damn," but it's between the lines in Swarthout.  See page 6, near the bottom.

The earlier opinion in Miller is here.  The panel decided against Miller even under the Ninth Circuit's pre-reprimand approach, so there is no real doubt what the bottom line will be when the court issues its new disposition.

1 Comment

I don't think you can read too much into this one, since the case is directly on point. What will be interesting to me to see is which judges get the message and which judges do not. My guess is that a few of the libs will move back closer to reason, but that some will not. The real test is whether the Ninth will re-examine some of its AEDPA precedent in specific cases, e.g., this nonsense idea that Batson requires comparative analysis. If the Supreme Court does not follow up its strong response to the Ninth's lawlessness, I can easily see some backsliding. It is beyond obvious that many judges on the Ninth Circuit hate AEDPA and will do anything to get around its strictures. The Supreme Court has been slapping the Ninth around for some time now on AEDPA cases--I'll believe that the Ninth has gotten the message when I see it.

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