September 18, 2003

A former 9th circuit clerk weighs in on Ninth Circuit Lefties vs. Constitutional Democracy, 03-56498 and her esteemed former bosses:

Reading the opinion, you can almost hear the panel saying: "Hey, let's not just halt this recall, let's have a little fun with the thing!" The opinion includes a fond historical nod to voting with fava beans and the wry observation that punch cards are "intractably afflicted with technologic dyscalculia." It's tough to count the number of times the judges gleefully point out that the secretary of state is barred from defending the punch-card machines because he is already subject to a consent decree holding that they suck.

And the—by my count—12 references to Bush v. Gore often carry the deliberate leadup: "Hey! It's just like the Supreme Court said in Bush v. Gore." Now, maybe I'm wrong. Maybe the judges on the 9th Circuit haven't been lying awake at night, wondering when they might finally have revenge on the high court for years of abuse and disrespect. There are ample other explanations for 9th Circuit nuttiness (and I know because I clerked there): The number of judges (26) and the fact that they sit in panels of three means that there is little predictability and less accountability for occasional wacky decisions. There is the possibility—which I'd dispute—that 9th Circuit liberals are more liberal than other liberals, including liberal Supreme Court justices. There is the phenomenon known by child psychologists as "labeling theory," wherein the little kid who always gets in trouble for standing in his cubby and pulling his pants down starts to do it because it's expected of him. And there is the fact that the 9th Circuit, while willing to bind itself by existing Supreme Court precedent, is not interested in playing the game played by other courts of appeals—namely, trying to predict how the high court might rule in cases of first impression. If there's no precedent, say the judges of the 9th Circuit, the buck stops here. Hence the Pledge of Allegiance cases, the marijuana cases, and the three-strikes cases.

But none of these explanations really offers the satisfaction inherent in my hypothesis: that the panel stuck it to the Supremes because it could.

Posted by Greg Ransom | TrackBack