"There they go again" was the sentiment expressed by conservative commentators in reaction to last week's ruling by the federal 9th Circuit Court of Appeals that threw out the capital sentences of dozens of death row inmates in Western states.
The San Francisco-based court -- which has jurisdiction over California, Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska, Hawaii, Guam and the Northern Mariana Islands -- has for years been regularly accused of that most amorphous but damning judicial offense: activism.
Last week's controversy only added to the accusations, and national attention and skepticism are likely to remain focused on the court this week as it begins to hear the appeal today in the ACLU's challenge to the Oct. 7 California recall election.
This is the court, after all, that shocked the nation by deciding that the words "one nation under God" were unconstitutional in the Pledge of Allegiance in California elementary schools.
For The Record
Los Angeles Times Monday October 06, 2003 Home Edition California Part B Page 11 Editorial Pages Desk 1 inches; 37 words Type of Material: Correction
College of Law -- In a Sept. 11 commentary on the U.S. 9th Circuit Court of Appeals, UC Hastings College of Law was incorrectly identified as part of UC San Francisco. It is a separate UC institution.
And this is the court that routinely -- more than any other federal appeals court in the country -- gets reversed by the U.S. Supreme Court.
Over the last seven years, the 9th Circuit's rate of reversal by the Supreme Court hovers above 80%, compared with 60% to 70% for other courts.
More important, the 9th Circuit also tends to be reversed unanimously. In one year alone (1996-97), the Supreme Court disagreed with the 9th Circuit 9 to 0 in at least 16 cases. (The Supreme Court's entire yearly docket is under 100 cases.) In the fall of 2002, it repudiated the 9th Circuit unanimously in three summary reversals in a single day -- an unprecedented slap.
All these 9-0 reversals mean that 9th Circuit opinions are failing to attract support from either conservative Antonin Scalia-types on the Supreme Court or its more liberal John Paul Stevens-types. How can such a high and decisive reversal rate be explained? Does it mean that the 9th Circuit is guilty of activism? Do such statistics prove that the 9th Circuit is disobedient when it comes to Supreme Court rulings?
Some suggest that the large size of the circuit and the physical impracticability of all 26 of its judges sitting together to hear the most controversial matters lead its three-judge panels, which decide most of the cases, to feel free to go their own ways. Others point to the fact that the strong personalities and intellects of some of the judges, such as libertarian-minded Alex Kozinksi and the famously liberal Stephen Reinhardt (six of whose opinions were unanimously reversed by the Supreme Court in a single year), as reasons why the court doesn't fit national norms.
But there could be other reasons as well. It's important to know that the 9th Circuit is one of the very few appeals courts that have more Democrat-appointees, 17, than Republican-appointees, nine. Contrast that with the Supreme Court, where only two of nine justices were picked by Democratic presidents, and the reversal rate starts to make more sense. The federal judicial-appointments game is hardly devoid of ideology; is it surprising that Democrat-appointed judges may have different judicial philosophies than Republican appointees?
Moreover, the Supreme Court keeps a more watchful eye on the 9th Circuit. Many 9th Circuit rulings that get reversed would slip under the Supreme Court's radar if they came from other courts. Part of the reason for that is personal. Almost half of the Supreme Court justices have close personal ties to the circuit. Justice Anthony M. Kennedy, who hails from Sacramento, sat on the 9th Circuit for many years; both Chief Justice William H. Rehnquist and Justice Sandra Day O'Connor come from and practiced in Arizona, and each has acted as the 9th Circuit's liaison to the Supreme Court; and Justice Stephen G. Breyer grew up in the West and has a brother who is a federal trial judge in the 9th Circuit.
Finally, I think many of the reversals by the Supreme Court reflect not a disobedience on the part of the 9th Circuit -- an unwillingness to abide by Supreme Court directives -- but rather a reluctance to take the next step that the Supreme Court probably will take, but has not yet taken. Where many other circuits may be trying to anticipate what the Supreme Court will think next, the 9th Circuit judges seem to ask only what it has already said. And if the high court has not yet spoken directly on the issue, the 9th Circuit tends to follow its own reasoning.
The "one nation under God" case is an example. As Justice Scalia himself has pointed out publicly, the 9th Circuit's ruling can find some support in past Supreme Court cases, although most observers predict that today's Supreme Court would come to a different conclusion than the 9th Circuit did.