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.
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.
UPDATE (10/1/05): The government has petitioned for cert., though the cert. petition isn't yet available at the SG's site.
Except Anna Nicole Smith isn't a litigant; that can't be helpful for cert petes.
As Admiral Kirk said about Khan, "he's nothing if not consistent."
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.
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.
"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.