Notice & Comment

Ninth Circuit Review-Reviewed: CA9 Is Broken, by William Yeatman

Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to business.

A Divided Court Cannot Stand

Every month, I read at least one indignant—and often incredulous—dissent in a major immigration controversy before the Ninth Circuit. March was no exception. 

Early in the month, Judge Daniel Bress warned that the majority’s order in Al Otro Lado “reflects a sweeping theory of judicial power with no basis in principle or precedent” and would “wreak . . .  havoc” at the border. A couple weeks later, in Padilla v. ICE, Judge Bridget Bade took the majority to task for a “shaky analysis” that contravenes the “unequivocal” intent of Congress. 

Turning to the Supreme Court, the Solicitor General in late March petitioned for a writ of certiorari to review the Ninth Circuit’s judgment in Ming Dai. In making its case, the government emphasized a dissent by Judge Consuelo Callahan, in which she “hop[ed]” for reversal because the majority’s Ming Dai decision “makes no sense and ignores the realities of factfinding.” Nine active judges had joined Callahan’s vehement objection to the denial of an en banc rehearing. 

Mind you, these examples merely sample the population of sharp-elbowed opinions emanating from immigration controversies before CA9. Within this divisive realm of law, it seems that split panels are the Ninth’s new normal. Furthermore, my impression is that dissenting rhetoric on these types of cases—and beyond—has become more heated during the 15 months that I’ve been covering the court for this blog. 

What am I getting at? Not to sound too dramatic, but I fear the court is being torn apart by a perfect storm—one that threatens the integrity of justice at CA9. 

President Trump, naturally, resides at the eye of the hurricane. 

On the one hand, his judicial appointments have resulted in a sudden influx of 10 new judges. Let’s take it for granted that the Ninth Circuit is the most “liberal” court among her peers. This means that the ideological “gap” between existing and new judges (appointed by Trump) is necessarily greatest at CA9 among all the circuit courts. 

On the other hand, Trump’s signature policy is a hard-right shift on immigration policy. Of course, immigration is a matter of disproportionate concern for the Ninth Circuit, by virtue of the court’s jurisdiction over much of the southern border. 

The upshot is that Trump’s judicial appointments have made it more likely that CA9 judges would disagree; simultaneously, the president deluged the newly divided court with fodder for disagreement. 

Yet it’s not all on Trump. In a recent “perplexed and perturbed” opinion, Judge Jay Bybee bemoaned that “Congress is no place to be found in these debates” on immigration policy. Bybee’s point was that immigration statutes are far too open-ended. As a result, policymaking in this area flows primarily from interpretation (instead of legislation), which gives courts too much opportunity for disagreement. 

I strongly suspect that the confluence of these factors threatens CA9 with significant institutional harm. 

First, I worry about diminishing comity. Judges are people under those black robes. Among human beings, sharp professional disagreements transform easily into personal animosity, which can reinforce the underlying professional disagreements. Last month, for example, the LA Times ran a story focused on personal snipes by anonymous senior CA9 judges against Trump appointees. Along these lines, I worry about spiraling polarization and its effects.

More concretely, I fear that chance is playing far too great a role in the CA9’s jurisprudence. If you’re an immigrant facing deportation within the Ninth Circuit, then the lottery to select your three-judge panel (randomly) is too crucial to your fate. Put differently, it’s too easy to predict how these cases will turn out, based on the luck of the draw.

To be sure, a panel’s composition is important to the outcome of any case in any circuit court. But CA9 is different. Its ideological poles are further apart, and its geography ensures an unending stream of high-profile cases over Trump’s immigration policies. In this manner, the Ninth Circuit stands out (in a bad way). 

A properly functioning court might mitigate these problems by ironing out inconsistencies through en banc rehearings. But the numbers game is mucking up this mechanism, too. According to the LA Times (based on interviews with judges), “Democratic appointees are likely to be more reluctant to ask for 11-judge panels to review conservative decisions because the larger en banc panels, chosen randomly, might be dominated by Republicans.” 

Above, I discussed how Judge Callahan’s dissent to a denial of an en banc rehearing in Ming Dai was joined by nineactive judges. It seems patently obvious that en banc review is warranted whenever 10 judges on a circuit court want to rehear a case—after all, they’re only about 13 judges on the average bench! And yet, in Ming Dai, the Democrat-appointed judges were afraid of their *odds* to seat a favorable en banc panel. So they used their brute majority to preclude further review. This cannot be how the system is supposed to work. 

What can be done about it? 

At the margins, I can think of smallish remedies. For example, CA9 might change its rules so that motions and merits panels remain consistent through a single case. The idea is to allow less space for unproductive disagreement. 

To similar ends, the court might turn down the temperature by regulating opinions dissenting to the denial of an en bancrehearing. Here, it bears noting that such opinions are far less common in other courts. Again, the idea would be to provide fewer chances for discord. 

Perhaps Trump will lose in 2020, which would reduce the flow of high-profile immigration controversies being piped into the Ninth Circuit and thereby alleviate the tension on the court. 

If, however, Trump gets reelected, then I’m not sure the situation won’t become untenable. In such a circumstance, I fear two mini courts could become entrenched within CA9. Were this to occur, then the case for breaking up the court would become very powerful indeed.

Bold Clerical Error

On March 23rd, a three-judge panel sua sponte invoked the All Writs Act and ordered a detained immigrant released due to the threat of COVID-19 at an immigration detention center. The order was published, which would render it precedential. Of course, such a precedential decision would have a huge impact on immigration policy. It was, therefore, a bit strange that the order was so short and cursory. 

Well, the mystery was quickly put to rest. The next day, the court de-published the order. The panel explained that there had been a “clerical error.” 

William Yeatman is a research fellow at the Cato Institute

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