The Wall Street Journal today published an editorial that underscores the contention, made by many, that said court is just out of step.
67-5When the Supreme Court rules against your decisions 67-5, that's not a good sign that you are interpreting the law properly.
From time to time these columns have noted the out-of-step jurisprudence of the Ninth U.S. Circuit Court of Appeals. The Circuit, with headquarters in San Francisco and jurisdiction over nine Western states, is heavy on Democratic appointees: Of its 27 currently active judges, three were appointed by President Carter and 13 by President Clinton. They are frequently overruled by the Supreme Court, but this term may set a record.
So far the Justices have reviewed eight Ninth Circuit decisions, and the Circuit is 0-8. The High Court has reversed four decisions and vacated four more. In Ayers v. Belmontes, a 5-4 Court reinstated a death sentence that the Ninth Circuit had overturned. In U.S. v. Resendiz-Ponce, a criminal procedure case, Justice Antonin Scalia cast a lone dissenting vote in favor of the Circuit's position.
The six other cases were all unanimous. That means -- for those keeping score -- that the cumulative vote against the Ninth Circuit in Supreme Court reviews since October is 67-5. Keep in mind that this is an appellate court that is supposed to heed Supreme Court precedent.
In recent years, some of the Justices have been engaging in a public debate over the degree to which the Supreme Court should look to foreign courts for guidance. Meanwhile, the jurisprudence of the Ninth Circuit is apparently too foreign even for the most open-minded members of the High Court.