Where Judicial Activism Morphs into Disregard

Where Judicial Activism Morphs into Disregard
By Debra J. Saunders
1/30/2011

Four times this month, the U.S. Supreme Court has slapped down the Ninth Circuit Court of Appeals. Four times the Big Bench unanimously reversed Ninth U.S. Circuit Court of Appeals decisions. Unanimous is a big deal. It means that there's no left-right political divide in the Big Bench's findings -- just right on the law and wrong on the law.

I take unanimous seriously. When the California Supreme Court issued a ruling last year that stayed a scheduled execution, I feared yet another over-reaching judicial fiat. But then I saw that all the justices were on board. The law had to be unambiguous.

In the instances of the three criminal reversals this month, the Big Bench clearly was sending a message to the Ninth Circuit -- particularly to Judge Stephen Reinhardt, who had written the opinions. And the message is: Show some respect for the law.

Followers of the Ninth Circuit are painfully aware of its reputation as an activist court that flouts laws it doesn't like and bulldozes rulings that defy its left-leaning politics. The San Francisco-based judicial district serves as a textbook example of how judges should not behave.

Start with Randy Moore's case. In a plea bargain, Moore pleaded "no contest" to the 1995 Oregon murder of Kenneth Rogers, whom Moore and two confederates had kidnapped and Moore had shot in the head. Moore was facing a possible death sentence. Thanks to the plea deal, he got 25 years and the possibility of parole.

Now, this is a sore spot for me because I don't think courts should even consider the appeal of any plea bargain unless the defendant was severely mistreated. But Moore appealed, and the Ninth seized Moore's plea bargain as proof he was represented by ineffective counsel.

The court's logic was deficient. As Criminal Justice Legal Foundation President Michael Rushford observed, Moore "got a good deal."

But the court was flouting federal law. Congress passed and President Bill Clinton signed the 1996 Antiterrorism and Effective Death Penalty Act precisely to prevent federal judges from issuing niggling orders that disregard court convictions and upend state appellate rulings.

In reversing Moore, Justice Anthony Kennedy had to remind the Ninth that its mandate is to follow the law.

Ditto the case of Joshua Richter, who was found guilty in a 1994 murder committed while he and an accomplice robbed a drug dealer. Once again, the Ninth found ineffective counsel.

In affirming the Richter conviction, Justice Kennedy wrote that the writ of habeas corpus stands as a safeguard against wrongful imprisonment. But the law is undermined "if there is judicial disregard for the sound and established principles that inform its proper issuance. That judicial disregard is inherent in" the Ninth's Richter decision.

Rushford found the unsigned "per-curiam" decision most damning because the Big Bench thought that the Ninth Circuit was so wrong that it "didn't even allow oral arguments."

Reinhardt and the majority had ordered the parole of Damon Cooke, who was convicted for attempted first-degree murder after he shot a friend in the head in 1991. The Ninth found that the parole board was wrong to consider the "cruel and callous" nature of the crime and wrong to ignore claims that Cooke was "an exemplary inmate."

The court also ordered the release of Elijah Clay, who was convicted of first-degree murder in 1978, because then-Gov. Gray Davis' refusal to heed a parole board recommendation for release was unreasonable.

Again, the Supremes ruled that federal judges have no dog in this fight: "There is no right under the federal Constitution to be conditionally released before the expiration of a valid sentence, and the states are under no duty to offer parole to prisoners."

(In a fourth reversal, this one written by Justice Sonya Sotomayor, the Supreme Court unanimously overturned a ruling involving a banking regulation.)

Conservative court watcher John Elwood believes that Justice Kennedy has taken on the task of scolding the Ninth because, "as a Ninth Circuit alumnus," the justice takes the court's battered reputation "a little bit more to heart."

And well he should. There are judges in the Ninth who see the bench as a portfolio to overturn any policy they don't like -- and jurisdiction be damned.

In 2009, a three-judge (including Reinhardt) Ninth Circuit panel ordered the release of 40,000 California inmates. Not only did the trio seem to think they had authority reserved for state lawmakers, but also, they issued the pronouncement that the state could release 1 in 4 inmates "without a significant adverse impact on public safety." As if saying so makes it so.

Elwood told me he tries to presume good faith and see the Ninth's decision as part of a simple "disagreement about how you apply the law." I try to do the same, but the Ninth has crossed the line so many times, there's no ink left in that well.

It's odd. When there is an opening on the Supreme Court, the Senate examines in detail whether nominees have the proper respect for past Supreme Court rulings. Sen. Dianne Feinstein is quite particular on that score. But in San Francisco, the Ninth Circuit doesn't seem to care what the U.S. Supreme Court writes. And it's OK.