"The Ninth Circuit's opinion was not just wrong. It also committed fundamental errors that this Court has repeatedly admonished courts to avoid." So said the United States Supreme Court today in Sexton v. Beadreaux, No. 17-1106.
The subject of these fundamental errors, once again, is the Ninth's failure to treat state courts as the coordinate courts that they are and to give their decisions the respect that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires. See the opinion for details.
This has happened so many times that it is tempting to say it is "dog bites man" and not news, but that is too flippant. For a court at the second tier of our judicial structure to repeatedly and flagrantly violate the law is no small matter. And, as the late Judge Reinhardt reportedly said, "they [the Supreme Court] can't reverse them all."*
In this case, the patently wrong decision was issued per curiam, i.e., without a designated author, with Judge Marsha Berzon and Maryland District Judge Marvin Garbis concurring and Judge Ronald Gould dissenting. (For those who like to keep track, Judges Gould and Berzon were both appointed by President Clinton.) The Ninth declined to rehear the case en banc, i.e., before a much larger 11-judge panel more representative of the court with no visiting judges, and no judge of the Ninth even called for a vote on the question.
Overturning a judgment affirmed by the state court is a serious matter, and it is painfully evident that the full Ninth Circuit is doing a dismal job of policing its rogue panels in this regard. Perhaps, Mr. White House Counsel, you need to get on the ball making nominations to fill those vacancies.
Congrats to SDAG Peggy Ruffra. They can't reverse them all, but you got them to reverse this one.
* Update: There had been some dispute about whether Judge Reinhardt actually said this, but a former clerk, Yale Professor Heather Gerken, confirms that he repeated this as a "mantra" in a memorial in Harvard Law Review, v. 131, no. 8, p. 2110.
Some thoughts:
Justice Breyer dissented without opinion. Very weak. Methinks there's a possibility that he did so in order to avoid having to defend the Ninth Circuit (which, in this case, was indefensible) while shielding it from the criticism of being unanimously reversed. Recently, Ed Whelan called out Kim McLane Wardlaw for her abysmal record, as shown by the five summary reversals she has eaten.
Is Breyer protecting Berzon here? It's a fair question.
The Supreme Court has more responsibility here. It tolerates the Ninth.