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Calling One First Street:
If you're wondering what kind of case gets granted by the Supreme Court these days, one strong candidate to watch is the Ninth Circuit's decision in Musladin v. Lamarque, initially decided in April and amended today. It's an opinion from the Ninth Circuit by Judge Stephen Reinhardt (check); it granted federal habeas relief to a murder defendant on the ground that the victim's family wore buttons with pictures of the deceased during the trial, relying on Ninth Circuit precedent despite the text of AEDPA (check); the initial panel was divided, with Judge Berzon joining Reinhardt and Judge Thompson dissenting (check); and it drew a dissent from the denial of rehearing en banc authored by Judge Kleinfeld (and another by Judge Bea), joined by Judges Kozinski, O'Scannlain, Tallmann, Bybee, Callahan, and Bea, that starts as follows:
  I respectfully dissent from the order denying rehearing en banc. We have effectively erased a statutory provision designed to restrict the power of the lower federal courts to overturn fully reviewed state court criminal convictions. And we have sharpened a serious circuit split.
(check check check) You can never be entirely sure, of course, but this one looks like a grant to me. Thanks to Howard for the link.
42USC1983 (mail):
Here's another good one to watch:
Dissenting from the Ninth Circuit's denial of rehearing en banc in United States v. Patterson, Judge Kozinski writes what would be an impressive introduction to a petition for writ of certiorari.


The panel holds that the district court violated the Double Jeopardy Clause by vacating Patterson's guilty plea and trying his case to a jury. This conclusion conflicts with Ohio v. Johnson, 467 U.S. 493 (1984), and the law of two other circuits. It also gives Patterson an undeserved windfall by shaving more than 10 years off his sentence. By failing to take this case en banc, we leave intact a dubious opinion, and we pass up the opportunity to reconsider our position in a longstanding circuit split about when double jeopardy protections kick in after a guilty plea.


UPDATE (10/1/05): The government has petitioned for cert., though the cert. petition isn't yet available at the SG's site.
10.21.2005 4:50pm
Goober (mail):
Cool!

Except Anna Nicole Smith isn't a litigant; that can't be helpful for cert petes.
10.21.2005 4:55pm
Brian G (mail) (www):
Is there a more overturned federal appeals judge in the country than Reinhardt?
10.21.2005 4:59pm
Observer (mail):
Brian - No.
10.21.2005 5:10pm
WB:
Reinhardt has made it abundantly clear that he doesn't like AEDPA. I will filibuster him myself if Bush replaces Miers with him.
10.21.2005 5:18pm
Kent Scheidegger (mail) (www):
Not liking a law is one thing. Deliberate sabotage is another. It is high time to consider for the federal courts the system we have in California. Once every twelve years, a judge goes on the ballot for a yes or no confirmation. It works very well here. Only once since the system went into effect in the 1930s have appellate judges been removed, and that was exactly when they should have been: when they misused their authority to sabotage the operation of a duly enacted, constitutional statute because they disagreed with its policy.
10.21.2005 5:24pm
Gordon (mail):
Good ol' Judge Reinhardt!

As Admiral Kirk said about Khan, "he's nothing if not consistent."
10.21.2005 5:35pm
Richard Riley (mail):
A few Terms back, not only did the Supreme Court reverse every single one of the Ninth Circuit cases it took on cert, almost every reversal was unanimous. Possibly some kind of record - one that Reinhardt probably takes pride in.

Some liberals like Reinhardt, for his feistiness. I think he's terrible, but there aren't many appellate judges like him any more. The appellate bench in the bad old days of the 70s was full of Reinhardts. The world really has changed in that respect, although you wouldn't know it from the whining of people like Bork who claim that the courts are as bad and lawless and activist as ever. That's just not so.
10.21.2005 5:37pm
MDM (mail) (www):
My personal belief is that much of AEDPA is an unconstituional violation of due process, at least as applied to death cases. Then again, I believe the death penalty itself (at least as currently administered) at minimum raises serious due process concerns. Unfortunately, SCOTUS doesn't agree, so if I were an appellate judge, I'd probably take a somewhat similar path to what Reinhardt does, though I might take the angle of "this is an injustice, but I have to do it because it's what the law says. Fix the law!"
10.21.2005 5:52pm
Mr. Mandias (mail) (www):
"Possibly some kind of record - one that Reinhardt probably takes pride in."

I have it on good authority that he does take pride in it.

Speaking of sure Cert. grants, wait till Reinhardt issues his opinion in the case in which he spontaneously ordered the parties to address AEDPA's constitutionality.
10.21.2005 6:13pm
WB:
Reinhardt has some interesting thoughts on his reversal rate and related stuff in an old interview with Bashman here. See especially questions 3, 4 and 10.
10.21.2005 8:13pm
frankcross (mail):
I've done some quantitative investigation here. And Reinhardt really is an outlier on being reversed. A couple of his 9th Circuit colleagues and others have pretty high rates, but Reinhardt is way out in front. And it's not just ideological, there are plenty of conservatives who are also reversed a lot.
10.21.2005 11:11pm
MSG:
Richard Riley said:

"A few Terms back, not only did the Supreme Court reverse every single one of the Ninth Circuit cases it took on cert, almost every reversal was unanimous. Possibly some kind of record - one that Reinhardt probably takes pride in."

Well, you can't blame that on so-called liberal judges. As of last summer (2004), the Ninth Circuit's appeals judges were evenly split between Republican and Democratic nominees. Any judges appointed since then would have made the Ninth Circuit a majority-Republican-nominee circuit.
10.22.2005 5:56am