An Unusual Aside:
Here' the conclusion of Justice Stevens' dissent today in Uttecht v. Brown, a case that overruled a Ninth Circuit decision by Judge Kozinski:
Judge Kozinski's opinion for the Court of Appeals in this case is solidly grounded on the entire line of our cases recognizing the basic distinction dramatically illustrated by Justice Powell's opinion in Darden and by Justice Rehnquist's statement in Lockhart. He surely was entitled to assume that the law had not changed so dramatically in the years following his service as a law clerk to Chief Justice Burger that a majority of the present Court would not even mention that basic distinction, and would uphold the disqualification of a juror whose only failing was to harbor some slight reservation in imposing the most severe of sanctions.
(emphasis added)

  Does anyone know the relevance of Kozinski having been a law clerk to Chief Justice Burger?
Justin (mail):
The most obvious is analogy to legislative history - an argument about the meaning of a case (or cases) coming from someone who helped craft that case or line of cases would be more forceful than one who did not.

Another possibility for inclusion, of course, would be Stevens's simple frustration about the conservativeness of the Court, that it will reverse even the legend himself Kozinski for being insufficiently, to use Adam Cohen's now famous word, "harsh."
6.4.2007 1:56pm

So what opinion did Kozinski help craft? And do you really think that reversing Kozinski is notable? Why?
6.4.2007 2:01pm
MikeC&F (mail):
It seems to me to be a rhetorical device used to show that the Court has departed from age-old precedent.

Though I assume you thought of that already. Why did you dismiss that thought?
6.4.2007 2:13pm
Kozinski isn't conservative, he's a libertarian. Perhaps this is also a window into Justice Steven's chambers, he's assuming that other Justice's only hire like-minded clerks.
6.4.2007 2:27pm
MikeC&F (mail):
Shawn Martin speculates here:

His conclusion:

Justice Stevens only mentioned the fact that Judge Kozinski clerked for Justice Burger. But the express reference to Judge Kozinski's clerking days probably makes even more sense when you recall the other individual for whom Judge Kozinski clerked -- the one that Justice Stevens doesn't expressly mention. Justice (then-Judge) Kennedy. The (utterly expected) swing vote on this 5-4 opinion.

Clearly, in my mind, Justice Stevens is saying: "Tony: Your own guy, Alex, wrote this thing. Come on, baby. Gimme your vote."

6.4.2007 2:32pm
What Justin said in his second paragraph. It looks like Steven's meant to underscore Kozinski's conservative credentials, the he isn't the type who might have clerked for someone like Thurgood Marshal, he clerked for Burger, with whatever the might imply. (But isn't this remarkably personal stuff to include in an opinion, or is it more commonplace than I imagine? Doesn't add anything of value to the opinion, though, does it?)
6.4.2007 2:33pm
Eric Muller (www):
Imputing views to clerks from the Justices for whom they clerked is silly. One of my more liberal colleagues here at UNC clerked for Rehnquist, and Homeland Security Czar Mike Chertoff clerked for Brennan.
6.4.2007 2:38pm
Justin (mail):
"So what opinion did Kozinski help craft?"

::shrugs:: Haven't researched the issue.

And do you really think that reversing Kozinski is notable? Why?

Yes, and I explained why. I'm not saying that its a great argument, or by itself justifies Stevens bringing Kozinski into the opinion personally, but despite your sarcasm about the reversal of a Ninth opinion in the previous post, its clearly not the lineup you expect on the routine AEDPA reversals. There's also a fundemental difference between a 5-4 reversal and a 9-0 reversal, but that's too off topic to get into right now.
6.4.2007 2:43pm

I'm not sure I understand your point. I gather you are just speculating about possible theories, without suggesting that there is any particular evidence in suport of them? That's fine, of course, but your initial comment led me to think you had something else in mind.
6.4.2007 2:58pm
Imputing views to clerks from the Justices for whom they clerked is silly.

But that's not what's happening here. It's not like Kozinski is some unknown guy, and we have to guess at his ideology by looking at who he clerked for. We know what kind of judge Kozinski is, just like we know what kind of judge Burger was.

To me, this was simply Stevens' best effort at pointing out the fact that a conservative judge wrote the decision below. And yes, I agree that Kozinski is more libertarian than conservative, judges don't fit neatly on a left-right spectrum, blah blah blah. I still think that's what he was saying.
6.4.2007 3:11pm
Justin (mail):
No, was just throwing my .02 out there in terms of brainstorming. Not sure what I said in the first post that implied that I was referring to additional information that I wasn't providing.
6.4.2007 3:13pm

Sorry for the misunderstanding -- Kozinski clerked in the 70s and the cases (as best I could tell) were from the 80s, so I was curious about what case you had in mind.
6.4.2007 3:22pm
Eliza (mail):
It seems to me that dissents are often written in this casual tone. Personal remarks, even very nasty ones, are hardly unheard of--almost as if dissents are internal documents. Speaking only for myself I approve of the custom and think it should be encouraged. Modern judicial opinions are far too boring.
6.4.2007 3:38pm
Justin (mail):
No worries.
6.4.2007 3:46pm
theobromophile (www):
First of all, is it just that I can't find the Ninth's opinion online, or was it unpublished? Was Stevens trying to highlight the fact that the majority was overturning one of their own (which would not be obvious, since you can't search for the opinion)?
6.4.2007 3:52pm
Theob., it's linked at Orin's previous post:
6.4.2007 4:02pm
skyywise (mail):
Flippant Speculation: The majority saw that Reinhardt was part of the panel and reversed as a knee-jerk reaction. The fact that Kozinski was the opinion author was lost in the rush to continue to marginalize anything the 9th might do that could be construed as progressive.
6.4.2007 4:03pm
Dave N (mail):
theobromphile: The Ninth Circuit case was published. Brown v. Lambert, 451 F.3d 946 (9th Cir. 2006).

I thought Justice Breyer's comment somewhat puzzling as well. However, the two other judges on the 9th Circuit panel were Reinhardt and Berzon.

Another poster on Volokh noted a week or so ago that having Judge Reinhardt on a 9th Circuit panel, or even better, authoring the opinion himself, seemed to significantly increase the likelihood of a cert. grant.

As a result, I thought Justice Breyer's reference to Judge Kozinski might have been, "Yes, this was a Reinhardt Panel--but look at which Judge actually wrote the opinion."
6.4.2007 4:05pm
Well, by a plain reading of his dissent, Stevens is clearly speaking to the majority, and is disappointed that they haven't followed past historical precedent, and softly chastises them for not even mentioning a "distinction" that was clearly written about by a couple other judges on the SC, with Judge K's "clerk" business thrown in to demonstrate the longstanding existence of those above understandings (either that or he's just being whiny).

Plus, it appears a guy got thrown off a jury because he expressed reservations on "severe" sanctions, and I suspect Stevens would have rather seen that guy seated on that panel, assuming "severe" means what I think it means.

I flipped through Breyer's dissent, just for fun:

The majority continues to rely upon the statement,however, not as proving an objection, but as helping todemonstrate courtroom "atmospherics," such as facialexpressions or vocal hesitations or tones of voice sufficient to warrant excusing Juror Z for cause. Ante, at 15--18, 19. But in my view the majority reads too much into too little.


BREYER, J., dissenting

What the words "no objection" suggest is simply that defense counsel did not have any objection.

No sh!t, Steve? You mean they actually meant what they said... "no objection"? What a concept, eh?

Good thing they got you around, though, to help decrypt what they REALLY said... while also accusing others of twisting around the plain meaning of that simple statement. Heck, everybody knows that only smart guys like you are capable of properly twisting around that guy's statement, how dare they encroach on your turf?

You are a master, sir!

Would one of you lawyers please give this guy a good hard slap for me next time you see him?
6.4.2007 4:13pm
Eliza (mail):
OT, but the other thing that reminded me of informality in dissents: A documentary has been made about the bizarre love of Linda Riss and Burton Pugach. You remember, torts, Riss v. City of New York, lye in the face, the state has no duty to protect? The dissenting judge kept referring to Linda by her first name, like we all knew her personally and she was a friend of ours. That sort of thing only pops up in dissents.
6.4.2007 4:13pm
This reminds me of Justice Stevens's strange statements in Scott v. Harris about whether his colleagues were too young to remember 2-lane highways.

OTOH, Justice Stevens refers to "entire line of cases . . . dramatically illustrated by" Lockhart and Darden. Perhaps he just means that the propositions "illustrated" in those case were clearly the law in the '70s as well. It seems like an awkward way to make a point.
6.4.2007 4:58pm
For habeas fans out there, to overturn the trial judge's factual findings after AEDPA doesn't there have to be "clear and convincing" evidence to overturn the finding.

In other words, even if everyone agrees the trial judge shouldn't have excused the juror here for cause based on the juror's responses, doesn't it have to be clear the judge was wrong here. The opinion doesn't mention this (unless I missed it).
6.4.2007 6:43pm
Respondent (mail):
Just about all of us expect Kozinski to be reversed again in the Seattle school case shortly. It'll be interesting to see if Justice Stevens uses a similar line in his dissenting from that Kozinski reversal.
6.4.2007 7:48pm
theobromophile (www):
Thanks, Dave N.
6.4.2007 7:56pm
According to Linda Greenhouse:

The subtext here is that Justice Kennedy and Judge Kozinski are particularly close. Justice Kennedy was himself once a judge on the Ninth Circuit, and Alex Kozinski was his law clerk. And Justice Kennedy regularly hires Judge Kozinski's law clerks to work at the Supreme Court.

That Justice Stevens chose to make an oblique but unmistakable reference in print to this special relationship may reflect less an effort to persuade Justice Kennedy than an expression of the liberal justices' frustration with how the term is going. Judge Kozinski also voted, somewhat against type, to uphold the Seattle school system's voluntary integration plan in another Ninth Circuit decision that the Supreme Court is likely to overturn in the coming weeks. That case is undoubtedly a major irritant between the two sides of what appears to be an increasingly polarized court.
6.5.2007 1:57am