Mostly unrelated to this week’s dramatic oral argument before a Ninth Circuit panel is the perennial question of whether the circuit itself has grown too large and should be split in two, separating most other Western states from California [Debra Saunders, Las Vegas Review-Journal]:
It’s so big that Congress has looked at bills to split the circuit since 1941, and it’s so big that none of those measures have succeeded.
This year, however, Sens. Jeff Flake and John McCain, both R-Ariz., see the possibility of success. They’ve introduced legislation to create a new 12th Circuit by peeling away six states — Nevada, Washington, Idaho, Montana, Arizona and Alaska. The slimmed-down 9th Circuit would continue to hear appeals from California, Oregon and Hawaii, as well as Guam and the Northern Mariana Islands….
The 9th Circuit is the only circuit to hold “en banc” — or full bench — hearings with 11 of its 29 judges [rather than the full number]. Olson has taken to calling the 9th Circuit “the court that’s not all there.”
“The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” President Donald Trump tweeted on Saturday morning. It was one of a series of tweets assailing the temporary restraining order issued by a federal judge in Washington state momentarily barring enforcement of the President’s executive order on visas and border crossing. Wait till he gets to the so-called Ninth Circuit!
It is still unusual to encounter the epithet so-called in high official pronouncements, in the United States at least (Pravda used to be fond of tak nazyvayemyye back in the day). But we have come to expect Trump to break new ground in judicial disrespect following his attacks last year as a candidate on federal judge Gonzalo Curiel of the Southern District of California, who was presiding over the Trump University case. I wrote then:
…In his rambling remarks, Trump also referred to Judge Curiel as “Mexican”: the jurist, previously the chief federal prosecutor for drug cases in southern California, was born in Indiana. Stoking by repetition, as his crowd of thousands booed, Trump called the federal judge “a hater of Donald Trump, a hater. He’s a hater,” and said he should be placed under investigation by the court system. I wonder whether anyone will be shocked if the judge requests personal protection for himself and his family as the trial proceeds.
Obama’s 2010 State of the Union remarks railing at the Justices of the Supreme Court in their presence regarding Citizens United were bad. This is far worse: the case is still in progress, Trump is a party, and the attack is on a single judge who will now find his task of ensuring a fair trial complicated. Trump, who speaks regularly around the country, chose to unleash the diatribe in the locality where the judge and others who will participate in the case, such as jurors, work and live.
As I noted at the time, the norm of not personally attacking judges has been eroding for years, not only at the hands of President Barack Obama (who publicly scolded judges not only in his 2010 State of the Union speech but also repeatedly during the court review of ObamaCare, as Josh Blackman documents) but from influential opinion leaders as well. One might cite in particular the extraordinarily vicious interest-group-led campaigns against judicial nominees, currently being cranked up against Judge Neil Gorsuch of the Tenth Circuit but familiar from a dozen earlier nominee battles as well.
In the mean time, like his remarks on Judge Curiel, Trump’s comments on Judge Robart could complicate the efforts of his own lawyers in court: “Either they have to defend the statements that Judge Robart is a ‘so-called judge,’ which you can’t do, or they have to distance themselves from the president, who is their boss,” as University of Pittsburgh law professor Arthur Hellman put it.
And the problems get more serious from there. Writes William Baude: “to call him a ‘so-called’ judge is to hint that he is not really a judge, that he lacks judicial power. It is just a hint, but it flirts with a deadly serious issue.”
That issue arises from the difference between criticizing the quality of a judicial decision and criticizing the authority of the judge to issue it:
If the court has authority, then the parties are legally required to follow its judgment: even if it is wrong; even if it is very wrong; even if the President does not like it. But if the court does not have authority, then perhaps it can be defied. So the charge of a lack of authority is a much more serious one. It is the possible set-up to a decision to defy the courts — a decision that is unconstitutional if the court does indeed have authority to decide the case.
- I’ve written about Antonin Scalia’s role in the late 1970s and early 1980s as editor of Regulation magazine, and more references to his work there came up at several panels during the recent Federalist Society lawyers convention, all worth watching for their own sake: antitrust (with Judges Doug Ginsburg, Frank Easterbrook (mentioning Regulation at 16:00), et al.), administrative law (Eugene Scalia, same, at 4:25+), and statutory interpretation (Paul Clement, same, at 36:15); and see earlier on my question at the telecommunications panel;
- “Can States Forcibly Unionize Small Businesses?” [Ilya Shapiro and Frank Garrison on Cato certiorari petition in Jarvis v. Cuomo, building on Harris v. Quinn line of cases]
- High court will hear new cases on limits of personal jurisdiction [Bristol-Myers Squibb v. Superior Court, Tyrrell v. BNSF Railway Company, earlier on BNSF, and more from Michelle Stilwell, WLF on that case]
- SCOTUS hears oral argument in “Slants” derogatory trademark First Amendment case [Mark McDaniel and Meredith Bragg/Reason, Jacob Sullum, earlier]
- Court accepts case on patent venue that could threaten preferred forum-shopping supremacy of Eastern District of Texas [TC Heartland v. Kraft Foods Group, brief by 56 law and economics professors]
- Now taking senior status, Judge Diarmuid O’Scannlain has ranked among MVPs of federal bench in part through his skill at flagging error by his Ninth Circuit for high court review [Ethan Davis and Daniel Sullivan, National Review]
- Feinstein-Collins bill (“Personal Care Products Safety Act”) to regulate soap, lotions, and cosmetics is best left to swirl down drain [Eric Boehm/Reason, earlier, Handcrafted Soap and Cosmetics Guild and ICMAD (mid-sized and smaller companies), Modern Soapmaking, my appearance on KPCC “AirTalk”]
- Standing in the need of standing: federal judge denies motion to dismiss suit over global warming against federal government and business groups on behalf of 21 young persons and scientist James Hansen [Phuong Le, AP/ABC News]
- Seattle home buyers, it’s okay to choke a little at what your money could have bought in low-regulation Houston instead [Randal O’Toole, more] Land use regs impede economic mobility: you could have read it at Cato first [David Boaz]
- “Why Industrial Farms Are Good for the Environment” [Jayson Lusk]
- “Suit claiming air emissions that fall to the ground constitute hazardous waste under Superfund proves too ambitious even for the Ninth Circuit” [WLF’s summary of Kevin Haroff and Zachary Kearns, Marten Law]
- “State social justice groups did not feel consulted” in carbon tax proposal on Washington ballot, which failed [Coyote, AP/KIRO]
A Ninth Circuit panel has ruled that Batman’s car, the Batmobile, has sufficient character traits to qualify for copyright protection. Judge Sandra Ikuta seems to have had fun writing the opinion. [Reuters/AutoNews]
Was the L.A. Times’s reporting manipulated in hopes of helping federal prosecutors win a case? If so, the effort sure backfired [Ken at Popehat, with commentary on the “too-cozy too-credulous relationship between law enforcement and the press”] And from the Fifth Circuit, also on prosecutorial misconduct: “The online anonymous postings, whether the product of lone wolf commenters or an informal propaganda campaign, gave the prosecution a tool for public castigation of the defendants that it could not have used against them otherwise, and in so doing deprived them of a fair trial.” [ABA Journal]
Counsel’s Ninth Circuit arguments on behalf of copyright troll Prenda Law did not go well, to put it mildly. Trouble was evident even before Judge Pregerson commented, regarding the clients, “They should have asserted the Fifth Amendment because they were engaged in extortion.” [Ken at Popehat; Joe Mullin, Ars Technica] More on the Prenda Law saga here.
- Judge chides Montgomery County, Md. police for “unlawful invasion” of family’s home [my new Free State Notes post]
- As more offenses get redefined as “trafficking,” state extends its powers of surveillance and punishment [Alison Somin on pioneering Gail Heriot dissent in U.S. Commission for Civil Rights report; Elizabeth Nolan Brown/Reason on legislative proposals from Sens. Portman and Feinstein] Proposal in Washington legislature would empower police to seize/forfeit cars of those arrested for soliciting prostitutes, whether or not ever convicted [Seattle Times]
- Progressives and the prison state: “most of the intellectual and legal scaffolding of the contemporary American carceral system was erected by Democrats.” [Thaddeus Russell reviewing new Naomi Murakawa book The First Civil Right: How Liberals Built Prison America]
- Here comes the next verbal conflation with negative implications for defendants’ rights, “traffic violence” [Scott Greenfield]
- Please don’t pay attention to what goes on inside Florida prisons, it would only spoil your day [Fred Grimm, Miami Herald via Radley Balko]
- Trouble in California: “U.S. judges see ‘epidemic’ of prosecutorial misconduct in state” [L.A. Times, Ronald Collins/Concurring Opinions, video from Baca v. Adams with Judges Kozinski, Wardlaw, W. Fletcher, earlier on California Attorney General Kamala Harris and Moonlight Fire case] But will Ninth Circuit’s strong words change anything? [Scott Greenfield including updates]
- “Plea Bargaining and the Innocent: It’s up to judges to restore balance” [U.S. District Judge John Kane]
- Sorry, National Review, but the marriage rulings are really nothing at all like Dred Scott [my new piece at The Daily Beast] Or Roe v. Wade either [Dale Carpenter, Ilya Shapiro, Charles Lane]
- Ninth Circuit won’t get the message about not expropriating raisin farmers and it’s time for the Court to remind it again [also Ilya Shapiro, earlier]
- Private businesses, even those that are quasi-public like Amtrak, shouldn’t be delegated the right to regulate their competitors [Ilya Shapiro yet a third time]
- “Supreme Court takes case on duration of traffic stops” [Orin Kerr, Rodriguez v. United States]
- Housing disparate impact theory, dodged by administration last time around, returns to Court [Bloomberg, Daniel Fisher; Texas Department of Housing and Community Affairs v. The Inclusive Communities Project; earlier]
- Noteworthy feature of just-argued wage-and-hour case is that Obama Department of Labor is taking the employer side [Denniston, SCOTUSBlog; Integrity Staffing Solutions v. Busk]
- “Supreme Court to hear case on right of Maryland to tax out-of-state income” [Ashley Westerman, Capital News Service]
- Mark your calendar if in D.C.: I’ll be moderating a Nov. 3 talk at Cato by Damon Root about his new book Overruled: The Long War for Control of the U.S. Supreme Court, with commentary from Roger Pilon and Jeffrey Rosen [Reason]