9th Circuit At It Again

Yesterday a three-judge panel for the San Francisco-based 9th Circuit Court of Appeals ruled that the California recall election cannot go forward as planned because some voters would be forced to use punch-card ballot machines (Southwest Voter Registration v. Shelley). The three judges — all appointed by Democrats — took the outrageous step of delaying a vote mandated by the California constitution, overturning the decision of District Judge Stephen Wilson who declined to delay the recall vote because it would violate the will of the voters.

Of course, outlandish rulings are far from being out of the ordinary for the liberal 9th Circuit. It was, of course, this circuit which declared the Pledge of Allegiance unconstitutional (Newdow v. U.S. Congress) and declared there to be no constitutional “right of the people to keep and bear arms” (Silveira v. Lockyer).

In fact, asinine rulings are so frequent that the 9th Circuit has become undesirably, but deservedly, well-known for its multitude of reversals from the Supreme Court and especially for a number of controversial decisions that reflect an activist court.

The Justice Department’s Office of Legal Policy has kept statistics on the 9th Circuit. Those stats reveal that that liberal court is reversed by the Supreme Court more frequently, and by a larger margin, than any other court of appeals in the country.

  • Ninth Circuit decisions reviewed by the Supreme Court have been reversed about 80 to 90 percent of the time over the past seven terms; during the same period, its rulings have received an average of between 1.5 and 2.5 votes from Supreme Court Justices.
  • In 1996-97, the Ninth Circuit was reversed in 27 of 28 cases, 16 of which were unanimous. In 1999-2000, the Ninth Circuit was reversed in 9 of 10 cases. And in 2000-2001, the Supreme Court reversed the Ninth Circuit in 14 of 18 cases, 7 of which were unanimous.
  • Between 1985 and 1997, the Ninth Circuit was reversed in a total of 157 cases while the other 11 regional courts of appeals were reversed an average of 46 times each.
  • Between 1985 and 1997, the Ninth Circuit was reversed unanimously (in non-summary dispositions) a total of 38 times while the other 11 regional appellate courts averaged fewer than 10 unanimous reversals each.

Cases such as the following are the types for which the Ninth Circuit has become infamous:

  • Finley v. National Endowment of the Arts:
  • On November 5, 1996, the Ninth Circuit declared unconstitutional a statute requiring the National Endowment for the Arts (NEA) to “take into consideration general standards of decency and respect for the diverse beliefs and values of the American public” (20 U.S.C. 954 (d)(1)) when doling out taxpayer-funded grants. On June 25, 1998, the Supreme Court, with an 8-1 majority, reversed the Ninth Circuit’s decision and upheld the decency requirements for NEA grants.

  • Compassion in Dying v. Washington:
  • In November of 1991, the citizens of Washington State rejected Initiative 119, which would have allowed physicians to assist terminally ill patients in committing suicide, overturning the state’s long-standing law against assisted suicide. On March 16, 1996, the Ninth Circuit en banc declared that Washington’s ban on assisted suicide was unconstitutional. On June 26, 1997, the Supreme Court unanimously reversed the Ninth Circuit’s ruling and upheld the will of the people of Washington State.

  • United States v. Oakland Cannabis Buyers’ Cooperative:
  • On September 13, 1999, the Ninth Circuit issued an opinion effectively reversing a district court’s injunction against cannabis clubs by ordering the lower court to consider modifying its order based on the notion that “medical necessity” is a legal defense. Also, on May 10, 2000, the Ninth Circuit ruled to allow the defense that smoking “medical marijuana” is a fundamental right, overturning the district court’s ruling that such a defense was inadmissable. On May 14, 2001, the Supreme Court unanimously reversed the Ninth Circuit by ruling that the Federal statute prohibiting marijuana use does not include an exception for ill patients.

With yesterday’s recall ruling, the 9th Circuit again has shown why it must be fixed: it’s too big, too out-of-touch, and too anxious to change laws by judicial decree. Of course, such an activist federal judiciary is that of which Leftists dream, so the prospects of change seem grim.

(This column has been adapted from a paper I wrote for the U.S. Senate Republican Policy Committee.)