Supreme Court issues two unanimous reversals of the Ninth Circuit

The Ninth Circuit’s reputation as the most-reversed circuit has improved in the last decade, but days like today suggest that it still tends to buck Supreme Court precedent and is reluctant to correct errors en banc. Two unanimous reversals from the Supreme Court highlight that today.

The first is Garland v. Ming Dai, unanimously reversing a decision of the late Judge Stephen Reinhardt. Ming Dai earned a “dissental” from rehearing en banc from 10 active judges (Callahan, Bybee, Bea, M. Smith, Ikuta, Bennett, R. Nelson, Bade, Collins, and Lee) (joined by two senior judges, O'Scannlain and Trott), and Justice Neil Gorsuch repeatedly mentioned in his opinion that the Ninth Circuit’s decision was rendered over the dissenting views of at least 12 members of that court.

The second is United States v. Cooley, unanimously reversing a decision by Judge Marsha Berzon. A dissental by Judge Daniel Collins (joined by Bea, Bennett, and Bress) from rehearing en banc did, however, earn this particular meta-critique by Judge Berzon (joined by Hurwitz):

Even within the questionable genre of dissents from denial of rehearing en banc, see Martin v. City of Boise, 920 F.3d 584, 588 (9th Cir. 2019) (Berzon, J., concurring in denial of rehearing en banc), Judge Collins’s dissent to the denial of rehearing (“dissent”) is an outlier. It misrepresents the legal context of this case and wildly exaggerates the purported consequences of the panel opinion. . . .

This case involves an unusual factual scenario and a technical issue of Indian tribal authority. It certainly does not present a “question of exceptional importance” meriting en banc consideration. Fed. R. App. P. 35(a)(2). There is no conflict among the circuits regarding the question presented here, the opinion is not in conflict with a Supreme Court decision, and the practical implications are limited. . . .

But the Supreme Court’s decision to grant certiorari and then reverse suggests that it was “important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.”

Less than a month after the Cooley decision, the Los Angeles Times ran a story about the “strain” on the Ninth Circuit from new judges, particularly Judge Collins, and specifically on his dissental in Cooley:

Among those who have caused the most consternation is Judge Daniel P. Collins, a former federal prosecutor and partner of a prestigious law firm.

Some judges say that, in the early months of his tenure, Collins has appeared oblivious to court tradition. He has sent memos at all times of the night in violation of a court rule and objected to other judges’ rulings in language that some colleagues found combative, they said.

Collins also moved quickly to challenge rulings by his new colleagues, calling for review of five decisions by three-judge panels, and some of the calls came before Collins even had been assigned to his first panel, judges said.

Active judges vote on the calls behind the scenes, and the public becomes aware of a failed effort only when dissents are later filed by the judges who favored reconsideration. Judges said it was unprecedented for a new jurist to try to overturn so many decisions in such a short period of time. The court has so far rejected most of Collins’ calls.

“Collins has definitely bulldozed his way around here already in a short time,” one 9th Circuit judge said. “Either he doesn’t care or doesn’t realize that he has offended half the court already.”
. . .

The behind-the-scenes tensions over Collins spilled into public last month in an order rejecting a call, presumably made by Collins, to reconsider a panel’s decision. The panel had upheld a lower court’s ruling in favor of suppressing evidence from a tribal officer’s search of a vehicle on a public highway. The highway ran through tribal land.

Collins, dissenting from the court’s refusal to reconsider, was joined by three judges, two Trump appointees and one appointed by President George W. Bush.

Collins called the panel’s decision “deeply flawed,” “plagued” by legal error and marked by “confused analysis.”

Two Democratic appointees whose ruling Collins wanted reversed wrote that, even in the genre of such dissents, Collins’ was an “outlier.”

“It misrepresents the legal context of this case and wildly exaggerates the purported consequences of the panel opinion,” wrote Judge Marsha S. Berzon, a Clinton appointee, and Judge Andrew D. Hurwitz, an Obama appointee.

“This case involves an unusual factual scenario and a technical issue of Indian tribal authority,” they said. “It certainly does not present a ‘question of exceptional importance’ meriting en banc consideration.”

While the Ninth Circuit may have “so far rejected most of Collins’ calls,” the Supreme Court is a different matter.

Federal judges are announcing future vacancies as an extremely high rate

Last fall, I noted that federal judges were announcing future vacancies a historically low rate ahead of Election Day. I posited several reasons why that might be the case, but recent events suggest it’s attributable to partisan reasons.

Here’s the difference between November 1 future vacancies in a presidential election year, with February 1 future vacancies after the election:

November 1, 2000: 11 - February 1, 2001: 9

November 1, 2004: 23 - February 1, 2005: 17

November 1, 2008: 19 - February 1, 2009: 10

November 1, 2012: 19 - February 1, 2013: 19

November 1, 2016: 17 - February 1, 2017: 13

November 1, 2020: 2 - February 1, 2021: 15

That 2021 figure is deceptively low. Another 5 federal judges announced their intention to go senior in the first week of February. Several others took senior status since January 20.

(Maybe unsurprisingly, some judges announce a year-end plan to retire (12/31 or 1/1), which occurs between Election Day and a new presidential administration. I think that’s why a number of announced future vacancies convert to actual vacancies.)

I’m sure there’s more precise ways of examining these figures going forward, and it’ll take some time for the full effects to shake out. But we’re witnessing an extremely high rate of announcements from federal judges, timed to a new presidential administration and razor-thin co-partisan control of the Senate.

"Texas v. Pennsylvania Would Have Upended the Electoral College"

Over at Law and Liberty, I have this post, “Texas v. Pennsylvania Would Have Upended the Electoral College.” It begins:

The Electoral College is a designedly decentralized process for the selection of the President of the United States. Each State may choose its presidential electors in the manner that the legislature deems appropriate.

The State of Texas, in Texas v. Pennsylvania, sought to upend this system in advance of one end: get the Supreme Court to do something, anything, to prevent President-Elect Joe Biden from taking office.

Parsing the holdings in Texas v. Pennsylvania

There’s already been a lot written about the Court’s brief statement in Texas v. Pennsylvania, but I thought I’d offer my sense of the holdings. Here’s the Court’s order issued December 11, 2020:

The State of Texas’s motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot.

Statement of Justice Alito, with whom Justice Thomas joins: In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction. See Arizona v. California, 589 U. S. ___ (Feb. 24, 2020) (Thomas, J., dissenting). I would therefore grant the motion to file the bill of complaint but would not grant other relief, and I express no view on any other issue.

Texas filed three motions: a motion for leave to file a bill of complaint; a motion for preliminary injunction and temporary restraining order or, alternatively, for stay and administrative stay; and a motion for “expedited consideration of the motion for leave to file a bill of complaint and for expedition of any plenary consideration of the matter on the pleadings if plaintiffs’ forthcoming motion for interim relief is not granted.”

The Court, I think, had four holdings:

First, does 28 U.S.C. § 1251(a) allow the Court to decline a motion for leave to file a bill of complaint in an “original and exclusive jurisdiction” case? The Court divided 7*-2 on this issue in concluding that yes, it can decline. And it’s not a surprise, as I told a reporter last week: Justices Clarence Thomas and Samuel Alito have repeatedly in other cases argued that the Court may not decline the motion.

Second, if the Court is allowed to decline such a motion, should the Court grant the motion for leave to file a bill of complaint? By a 7*-0 vote (an issue Justices Thomas and Alito would not reach), the Court said no, and the Court declined the motion for leave. The Court did not need to give a reason, but here it did—because, the Court noted, Texas lacked standing.

Third, should the Court grant the motion for preliminary injunction and temporary restraining order or, alternatively, for stay and administrative stay? By a 9*-0 vote, the Court said no—7* justices because the answer to the Second holding (above) rendered the motion moot, and 2 justices (Thomas and Alito) because of unarticulated reasons (more on this in the closing thoughts below).

Fourth, should the Court grant the motion for expedited consideration, etc.? By at least a 7*-0 vote, the Court said no, as all other motions were “dismissed as moot.” It is not clear whether Justices Thomas and Alito thought so—the separate statement indicates they “would not grant other relief,” but expediting the proceedings is not really a request for “relief.”

One last wrinkle: did Justices Thomas and Alito, in their statement that they “would not grant other relief,” opine on whether they would grant relief requested in the complaint? I don’t think so. Granting the motion for leave to file a bill of complaint would open the process up to the ordinary rules of civil cases, including allowing the defendant States to file an answer, or a Rule 12 motion to dismiss, and so on. (No State filed such a motion.)

It’s possible that this ambiguity should be construed as Justices Thomas and Alito agreeing to grant the the motion, but turning around and sua sponte rejecting the relief sought in the complaint for lack of standing or on the merits (for unarticulated reasons). But the phrase, “I express no view on any other issue” suggests that this isn’t the case.

In closing, that’s how I parse this case at the moment. And I don’t think it tells us really anything about any justices’ thoughts on the merits. But it does suggest that even Justices Thomas and Alito saw no likelihood of success on the merits, as their denial of the motions for preliminary injunction, etc. suggest as much.

*UPDATE: Jon Endean in the comments helpfully points out that because the justices are not on the record, we do not know if all of them agreed. Some may have disagreed but were not on the record about it. So it could be only 5 or 6 justices instead of 7, or it could be 7 or 8 justices instead of 9. And it’s entirely fair to emphasize that the “shadow docket” does not formally record all of the justices’ positions. So my instinct is that if a justice disagreed, she might write separately; but that is not necessarily the case, and so I include the asterisks.

Federal judges are announcing future vacancies at historic lows ahead of Election Day

As President Donald Trump has nominated a number of judges over his four years in office, and as Senator Mitch McConnell has led efforts in the Senate to ensure that those judges are confirmed, judicial vacancies have fallen significantly. But another thing that’s also dropped off—the number of federal judges announcing future vacancies.

We can look at “future judicial vacancies,” reported by the Federal Judicial Conference, to see how many federal judge have future vacancy plans. Some have announced a retirement date or a plan to take senior status; others announce plans to retire or take senior status upon confirmation of a successor; other non-Article III judges have a term that expires on a particular date; and still others have been nominated for a different court, and the vacancy will arise upon their confirmation to that court. Those announcements could be months into the future.

We can track the historic “future vacancies” recorded as of November 1 in an election year (cheating a bit to include October 23, 2020 at the moment, but I’ll update if there’s a change by November 1).

1992: 3

1996: 14

2000: 11

2004: 23

2008: 19

2012: 19

2016: 17

2020: 2

(Edit: my original number, 3, included the vacancy on the Seventh Circuit caused by the (anticipated) elevation of Justice Amy Coney Barrett to the United States Supreme Court. She was elevated before November 1, dropping the total to 2.)

There are a number of possible explanations. It could be over political calculus, as Democratic-appointed judges hold on to their terms to see the outcome of the election, and Republican-appointed judges who wanted to retire already have done so. It could be that there are simply fewer announcements, and more judges simply retire with less public anticipation. Fewer judges are being elevated right now because essentially all the appellate court seats are filled, meaning fewer lower-court vacancies. The Senate in the past may have moved more slowly in an election year when the president was of a different party. Judges feel an increased obligation to remain in place during the pandemic to minimize what’s already a disruptive time. Some judges also announce their retirement contingent on confirmation of a successor, and perhaps those have been filled at higher rates.

In short, I don’t have terrific explanations except to name a bunch of ideas. But the low number of announced future vacancies struck me as noteworthy.

Recent dissental track records in the Ninth Circuit

The “dissental”—an opinion dissenting from the denial of rehearing en banc—is a popular tool in the Ninth Circuit. The circuit is large, and it has historically seen high reversal rates before the United States Supreme Court.

I thought I’d look at recent dissentals in the Ninth Circuit, given the arrival of a number of judges appointed by President Donald Trump, and who joined them.

A few methodology notes. A judge may write a “statement” concerning the denial of rehearing en banc, or an opinion concurring in the denial of rehearing en banc; I include neither in this tally. I do not include those judges who publicly voted in favor of rehearing en banc but did not join the dissental. Only those who joined the (or one of the) dissentals are included.

I track 17 dissentals from January 1, 2019 to August 24, 2020. (UPDATE: Thanks to the astute observation of “@fedjudges” on Twitter, I missed a few the first time around!) Most Trump-appointed judges joined the court after January 1, 2019 (but there are some interesting late 2018 ones I exclude!). I include the dates they assumed office, but it’s not clear when, for instance, how quickly some would begin to participate on en banc votes (or feel comfortable joining a dissental after taking the bench). Those who have retired or taken senior status before today are listed as “others.” If the judge did not join a dissental, it’s in gray; if they did, it’s marked with an “x” and is in orange. I cleared out any shading for opinions released on the day a judge took office or earlier.

View fullsize

You can click on the image to zoom in. Historically, Judges Conseulo Callahan and Sandra Ikuta have been among the most reliable dissental participants, with some regular voting from Judge Milan Smith, the only three President George W. Bush appointees left active on the Ninth Circuit. Among these fourteen cases with dissentals, there was one dissental joined by Judge Ronald Gould (a President Bill Clinton appointee) and one by Judge John Owens (a President Barack Obama appointee), and no other instances of a Democratic-appointed judge joining a dissental.

The bulk of joining (or writing!) dissentals has come from Trump appointees (with recognition that some judges joined the Ninth Circuit during this window).

Ryan Nelson: 12

Mark Bennett: 10

Dan Collins: 10

Bridget Bade: 9

Dan Bress: 7

Lawrence VanDyke: 6

Kenneth Lee: 5

Patrick Bumatay: 5

Danielle Hunsaker: 1

Eric Miller: 0

Justice Kavanaugh mentions allocation of power over elections in Calvary Chapel dissent

I’m a little late to this (as I’ve been in the midst of a cross-country move!), but I wanted to highlight a passage from Justice Brett Kavanaugh’s dissenting opinion in Calvary Chapel v. Sisolak. The case was about whether regulations opening some businesses but not allowing churches to open were permissible, which I won’t rehash here. But I did want to highlight one portion of his dissenting opinion:

I agree that courts should be very deferential to the States’ line-drawing in opening businesses and allowing certain activities during the pandemic. For example, courts should be extremely deferential to the States when considering a substantive due process claim by a secular business that it is being treated worse than another business. Cf. Jacobson v. Massachusetts, 197 U. S. 11, 25–28 (1905). Under the Constitution, state and local governments, not the federal courts, have the primary responsibility for addressing COVID–19 matters such as quarantine requirements, testing plans, mask mandates, phased reopenings, school closures, sports rules, adjustment of voting and election procedures, state court and correctional institution practices, and the like.

(Emphasis added.) Professor Josh Blackman highlighted that this mention of elections was “not inadvertent.”

This is not a gloss on any notion of the Purcell principle, which says that federal courts should be particularly reluctant to issue orders affecting elections close in time to the election that may result in voter confusion. Earlier this spring in RNC v. DNC, it figured prominently (if disputably).

But those timing-based concerns are different from the recognition that “state and local governments, not the federal courts, have the primary responsibility.” The default power over the times, places, and manner of holding congressional elections is left with the states, unless the federal government chooses to enact legislation on the topic. For state elections, there’s even less for the federal government to do. And while the federal courts have increasingly relied on the Anderson-Burdick framework as a kind of catch-all opportunity for federal review of election rules, some federal courts have begun to push back. Justice Kavanaugh’s inclusion of this phrase suggests a similar reluctance.

A puzzle to consider in Colorado Department of State v. Baca

The two “faithless elector” cases were originally consolidated to be heard together. But Justice Sonia Sotomayor late in the process discovered she knew one of the parties in the Colorado case and withdrew. That may have been a fortuitous act and provided a clean opinion in Chiafalo v. Washington—and the per curiam opinion in Colorado Department of State v. Baca gives us a hint why.

Many have focused on the substantive difference between the Washington and Colorado laws—Washington counts a faithless vote but fines faithless electors; Colorado does not count a faithless vote and replaces a faithless elector.

But there were material procedural differences, too—specifically, multiple material problems with the Colorado plaintiffs’ case in Baca. In Washington, the electors were fined and contested that in state court. Easy injury to provide (a $1000 fine), easy remedy to seek, easy cause of action to raise.

In Colorado, however, plaintiffs faced several challenges. Were their claims moot? Could they sue a state under Section 1983—or, really, could the state waive this argument when sued for damages?

At oral argument in Baca, Justice Stephen Breyer in particular with concerned about these procedural wrinkles in the Colorado case. Justice Samuel Alito and Neil Gorsuch also raised versions of such concerns.

Now, because Justice Sotomayor was recused from Baca, the principal case became Chiafalo, because all nine justices could participate. Eight justices joined Justice Elena Kagan’s opinion; Justice Clarence Thomas concurred in the judgment, which Justice Gorsuch joined in part.

Now, to the entirety of the Court’s per curiam opinion in Baca:

PER CURIAM.

The judgment of the United States Court of Appeals for the Tenth Circuit is reversed for the reasons stated in Chiafalo v. Washington, ante, p. ___.

It is so ordered.

JUSTICE SOTOMAYOR took no part in the decision of this case.

JUSTICE THOMAS concurs in the judgment for the reasons stated in his separate opinion in Chiafalo v. Washington, ante, p. ___.

I looked at this opinion a few times wondering what happened. Specifically, what happened to Justice Gorsuch? He agreed with Justice Thomas’s Tenth Amendment argument in Chiafalo. What about here? Is the Tenth Amendment no longer in play?

And then I considered another possibility—as a per curiam opinion, we don’t see the lineup of justices. Some justices may not agree with the outcome but may choose not to note their dissenting opinion. It might be the case that Justice Gorsuch (and perhaps another, like Justice Breyer) didn’t agree to reverse for the reasons stated in Chiafalo. It might be that the procedural wrinkles would have been a reason to reverse, but they opted not to publicize that here and now, saving the issue for another day.

I don’t know. I would, however, resist the urge to call Baca a “unanimous” decision of the Court. It certainly appears unanimous. But there are reasons to think that some of the procedural wrinkles would lead some members of the Court to come out differently if they couldn’t hide behind the per curiam opinion here.

Should district court judges go "Reinhardt" on election laws during the coronavirus pandemic?

That’s the gist of Professor Nicholas Stephanopoulos’s conclusion in a recent University of Chicago Law Review Online piece.

If there’s a saving grace here, it’s the ratio of lower court to Supreme Court activity: about twenty-to-one, so far, in the area of pandemic-related election litigation. The sheer volume of these suits guarantees that the vast majority of them will never be subjected to Supreme Court review. To be sure, the Court will probably decide additional pandemic-related cases—and decide them badly, misapplying sliding-scale scrutiny and furthering its ideological agenda. But as Judge Stephen Reinhardt once said of the Justices, their limited caseload means “[t]hey can’t catch ’em all.” What they don’t catch in the leadup to the November election is likely to be better, legally and democratically, than what they do.

Professor Stephanopoulos believes that the Supreme Court is wrong on law (and on the political consequences) on a variety of election law cases, including the Supreme Court’s recent decision in RNC v. DNC out of Wisconsin. But advocating for district courts to, for lack of a better phrase, “go Reinhardt” on the Supreme Court struck me as particularly notable.