WASHINGTON – The Supreme Court’s favorite target again this year was the California-based 9th Circuit United States Court of Appeals, which has seen 15 of its 16 decisions overturned on review.
For decades, conservatives at the High Court have looked skeptically at the historically liberal appeals court and regularly revisited its rulings, especially on criminal law and the death penalty.
But by some estimates, this year saw the highest number of overturns of 9th Circuit Supreme Court decisions since 1985. And the spectrum of issues was wide, including immigration, religion, voting rights. , property rights and class actions.
In four years, President Donald Trump has appointed 10 judges to the Court of Appeals, a sprawling Western jurisdiction that includes nine states and two U.S. territories. Presidents Obama and George W. Bush each appointed seven judges to the 9th Circuit during their eight years in the White House.
Trump’s choices appeared to have played an important role this year in pushing for an internal review of decisions they didn’t like and joining in sharp dissent that sparked interest from the Supreme Court.
“The more people who join the dissidents, the more it catches the attention of conservatives,” said a 9th Circuit judge, who agreed to speak only on condition of not being identified by name.
“This year was different,” said another judge. “This year was really different.
When two fruit farm owners sued a California state regulation in 1975 that allowed union organizers to enter their property to talk to workers, they lost before a federal judge and the 9th Circuit.
Clinton-appointed Los Angeles judge Richard Paez said in a 2-1 decision that the state rule does not allow a “physical take” of farmers’ property, as their lawsuit claimed, but rather temporary access to it.
Los Angeles Judge Sandra S. Ikuta, appointed by George W. Bush, wrote a dissenting opinion saying the ruling was wrong and should be overturned. She said the state rule takes “a landowner easement” and gives it to union organizers who are free to enter when they choose. Disagreeing with the entire court’s refusal to reconsider the panel’s decision, seven other 9th Circuit judges agreed, including six people appointed by Trump.
When the Supreme Court ruled 6-3 for homeowners last month, Chief Justice John G. Roberts Jr. cited Ikuta’s dissent. “Access regulation takes over the right to invade producers’ property,” he wrote in Cedar Point vs. Hasid. The high court was divided on ideological grounds.
The same ditch was displayed in the court’s 6-3 decision protecting large donors to conservative charities and nonprofits from disclosing their names to the California attorney general.
The 9th Circuit, in a 3-0 decision, upheld the state’s policy of controlling donors as an anti-fraud measure, but Ikuta wrote a dissent, joined by four people nominated by Republicans, including two nominated by Trump. The dissent said the full appeals court should “correct this error.” She argued that experience has shown that Tory donors suffered “harassment and abuse” when their names came out.
The Supreme Court agreed to review the decision and again Roberts cited Ikuta’s dissent in his opinion reversing the 9th Circuit in Americans for Prosperity Foundation vs. Bonta.
“There is still a large cohort of liberal judges” on the 9th Circuit, said Ed Whelan, a conservative legal analyst in Washington, “but there are now many conservative candidates who are vigilant in calling them out.”
A total of 47 judges sit on the 9th Circuit. Of these, 24 were nominated by Republicans dating back to President Nixon, and 23 were nominated by Democrats under President Carter.
Many of these judges work part time. Of the full-time lawyers, 16 are Democrats and 13 are appointed Republicans.
The size of the circuit – the largest in the country encompassing seven states – is part of the reason why its cases are often referred to the Supreme Court for review.
“The 9th Circuit is so much bigger than any other circuit that it’s inevitable that it will take more cases on the 9th Circuit,” said Erwin Chemerinsky, Dean of UC Berkeley Law School.
Although last year’s 9th Circuit reversal rate was unusually high, the High Court actually overturned 80% of all the cases it examined, Chemerinsky noted.
In addition, only a tiny percentage of appeal decisions are reviewed by the Supreme Court. Typically, the 9th Circuit makes around 13,000 decisions per year.
Chemerinsky noted that the Supreme Court has overturned several 9th Circuit cases on immigration and habeas corpus, the legal way to release a person from detention. “The 9th Circuit is historically more liberal on immigration and habeas matters,” he said.
However, some reversals have occurred in cases which were not ideological. The Supreme Court overturned a 9th Circuit ruling made by Republican appointees on what constitutes a robocall.
As the Supreme Court split along ideological lines over property rights, voting rights and conservative 9th Circuit donor affairs, judges were unanimous in overturning 9th Circuit in several immigration cases.
On June 1, they rescinded a unique 9th Circuit rule established by the late Liberal Judge Stephen Reinhardt. For nearly 20 years, he wrote that the testimony of people seeking asylum on the basis of fear of persecution must be “held credible” unless an immigration judge “explicitly” concludes that we must not believe them.
In his final opinions, Reinhardt granted asylum to Ming Dai, a Chinese citizen who arrived in the United States on a tourist visa and claimed refugee status for himself and his family. He said they were fleeing China’s forced abortion policy.
It was only later that immigration officials learned that his wife and daughter had returned to China because they had good jobs and education there, but the husband did not have a job. to which to return.
An immigration judge had exposed the whole story and rejected the asylum request, only to be overturned by a 2-1 decision of a 9th Circuit panel. The panel cited Reinhardt’s rule and noted that although evidence emerged questioning Ming Dai’s claims, there had been no “explicit” findings by an immigration judge, so his story had to be accepted.
“Over the years our circuit has fabricated erroneous rules regarding the credibility of political asylum seekers,” wrote Senior Judge Stephen Trott in dissent. And later, 11 other appellate judges joined the dissenters arguing for the removal of this rule.
Last fall, lawyers for the Trump administration cited the dissent and urged the Supreme Court to hear the case. They noted the importance of the 9th Circuit in asylum cases. Because of its liberal reputation, “Circuit 9 actually receives more review requests than all the other circuits combined,” they said.
Reversing the appeals court in the 9-0 decision, Judge Neil M. Gorsuch began by noting that “at least 12 members of the 9th Circuit have opposed this judicial rule”.
Judge Sonia Sotomayor issued another 9-0 ruling, ruling that an immigrant arrested for “illegal entry” after being deported years ago cannot challenge the basis for his original deportation. The 9th Circuit had said such a defendant could argue that his deportation was “fundamentally unfair”, but “the law does not allow such an exception,” Sotomayor said in United States vs. Palomar-Santiago.
The most ambitious immigration decision did not come from the 9th Circuit, but it overturned a decision from the 9th Circuit nonetheless. The question was whether the more than 400,000 immigrants who lived and worked under temporary protection status were eligible for green cards. The Philadelphia-based 3rd Circuit said no, rejecting a green card for a Salvadoran couple who entered the country illegally in the 1990s, but have since lived and worked in New Jersey.
The 9th Circuit had taken the opposite view, and Trump’s lawyers cited the split as a reason to hear the New Jersey case. On June 7, Judge Elena Kagan spoke for the court in ruling that Circuit 3 was right and Circuit 9 was wrong. To gain legal permanent status, immigration law “first requires legal admission,” she said in Sanchez v Majorkas.
The only claim of the 9th Circuit came in a significant matter. By a 9-0 vote in NCAA v. Alston, the judges agreed with the 9th Circuit that college sports authorities could be sued under antitrust laws for conspiring to make billions of dollars while insisting star athletes go unpaid.