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Ninth Circuit Clearly Wrong Yet Again

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The notorious Ninth Circuit has been reversed yet again by the US Supreme Court in a crime-related case.  Yet again, not a single member of the high court thought the Ninth's judgment was correct.  Yet again, the Ninth was warned by a strong dissent from denial of rehearing en banc by many of its own judges.

The key question in Ashcroft v. al-Kidd is whether a Fourth Amendment attack on a seizure can be made by claiming an invalid subjective motivation, even though the seizure is objectively valid, meeting the requirements of the Fourth Amendment for a seizure of that type.

We thought we had killed that argument off 15 years ago in Whren v. United States, 517 U.S. 806 (1996), but like the monster in a formula horror movie it springs back to life and attacks again.  Despite Whren and a host of other Supreme Court precedents on this question, the Ninth Circuit held to the contrary based on a strained inference from the drug checkpoint case, Indianapolis v. Edmond, 531 U.S. 32 (2000).  That case involved stops with no individualized suspicion.  To think that Edmond is more closely analogous to this case, involving a material witness warrant issued by a magistrate on an individualized showing, than the cases where the Supreme Court has rejected subjectivity, is an enormous stretch.

Far worse than its merits holding, though, was the Ninth Circuit's assertion that the law was "clearly established" in favor of its holding.  That is absolutely preposterous.  All eight Justices participating agree that this holding is wrong, see the first paragraphs of all three concurring opinions, and the opinion of the Court includes a severe but thoroughly deserved rebuke.
The Court of Appeals also found clearly established law lurking in the broad "history and purposes of the Fourth Amendment." 580 F. 3d, at 971. We have repeatedly told courts--and the Ninth Circuit in particular, see Brosseau v. Haugen, 543 U. S. 194, 198-199 (2004) (per curiam)-- not to define clearly established law at a high level of generality.
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While featuring a District Court's footnoted dictum, the Court of Appeals made no mention of this Court's affirmation in Edmond of the "predominan[t]" rule that reasonableness is an objective inquiry, 531 U. S., at 47. Nor did it mention Whren's and Knights' statements that subjective intent mattered in a very limited subset of our Fourth Amendment cases; or Terry's objective evaluation of investigatory searches premised on reasonable suspicion rather than probable cause; or Bond's objective evaluation of a suspicionless investigatory search. The Court of Appeals seems to have cherry-picked the aspects of our opinions that gave colorable support to the proposition that the unconstitutionality of the action here was clearly established.
What can be done about the Ninth?  Its unbroken string of reversals in criminal-related cases just goes on and on, and most of these reversals are unanimous.  Yet that court, as a whole, shows no signs of contrition or intent to change its ways.

One thing to do, obviously, is scrutinize nominations with great care.  "No more Reinhardts on the Ninth" should be a line in the sand.  The successful blocking of the Goodwin Liu nomination is a good start.  For habeas, we need to look at further restrictions, given that the compromise reforms of AEDPA have been evaded and partially nullified.  For suits such as this, though, reversing the Ninth may be a substantial part of the Supreme Court docket for the foreseeable future.

[In case anyone is wondering, Plata was a District Court decision appealed directly to the Supreme Court under the unusual provisions of the Prison Litigation Reform Act.  It is not a Ninth Circuit case.]

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"Yet that court, as a whole, shows no signs of contrition or intent to change its ways."

The panel opinion in al-Kidd was written by Judge Milan Smith (a compromise nominee of Bush 43). It is telling to look at the opinions with respect to the en banc rehearing motion. GOP appointees took the lead in rejecting the panel opinion (joining Judge Bea who dissented from the panel decision). Clearly, with some exceptions, the problem on the Ninth is the Democratic appointees. And it also points up the problem with compromise nominees as well.

We are constantly told that GOP nominees are "extremists" etc. But the record of the NInth (and the Sixth) quite clearly shows that judges like Bea are not the problem, whereas judges like Paez and the gang are.

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