Man Without Qualities

Thursday, May 30, 2002

Containing the Decay

Max Power notes that the Supreme Court has agreed to review the Ninth Circuit case US v Recio. I agree that a 9-0 reversal of the disgraceful Ninth Circuit opinion is to be expected. The Ninth Circuit held that where a co-conspirator joins an ongoing criminal conspiracy which has been legitimately disrupted by law enforcement officials, the co-conspirator may escape conviction for conspiracy by arguing that it was impossible for him to "join" the conspiracy because it had ceased to exist. This particular piece of legal doggerel has been around - and been judicially rejected - for a long time. The issue is a perennial favorite of law professors for their criminal law class exams. Put another way: The Ninth Circuit knew a lot better than to perpetrate the decision it did.

But Recio does not stand by itself - it is only the most recent in a decades-long litany of disruptive, willful and incompetent decisions by the Ninth Circuit. Indeed, with some exceptional luminaries - such as Judge Alex Kozinski - the Ninth Circuit has for many years been a huge embarrassment to the Federal Court system. In a given year the Supreme Court may review about 25 Ninth Circuit decisions - typically reversing more than 20 of them. Where the Ninth Circuit and another Federal Circuit disagree on a given issue, the Ninth Circuit view is rarely found to be the correct one by the Supreme Court. The problem goes way beyond mere incompetence in the Ninth Circuit.

What can be done? Obviously, the most important thing is the rapid appointment of competent judges committed to following Supreme Court precedent and Congressional statutory language. The Senate - and especially Senators Boxer and Feinstein - bear a huge responsibility for this mess by bottling up judicial appointments on partisan grounds.

But until the problem is fixed, I believe the Supreme Court should promulgate a rule absolutely prohibiting the use of Ninth Circuit precedent outside the Ninth Circuit, unless the Supreme Court has specifically released the particular Ninth Circuit case to be used as circuit court precedent. That is, the Supreme Court should prohibit lawyers from citing to un-released Ninth Circuit precedent in any document filed with the Supreme Court or in any federal court outside the Ninth Circuit. Once the Supreme Court has released a particular Ninth Circuit case, it could be cited to the extent any case from any other circuit court is cited - but release would not confer any additional Supreme Court imprimatur on the released case.

The federal courts already employ a two-tiered system of "published" and "unpublished" opinions. Unpublished opinions of the Circuit Courts may not be cited as precedent - but are genuine, binding decisions in their particular cases. This two-tiered system recognizes that the quality of unpublished opinions as precedent is just not up to the standards of what federal courts expect to see in cited precedent. The above suggestion would essentially "de-publish" all Ninth Circuit opinions outside the Ninth Circuit - which would similarly recognize that Ninth circuit opinions are generally just not up to the standards of what federal courts expect to see in cited precedent.

The Supreme Court could adopt procedures for releasing opinions that filter for quality. For example, an opinion written by Judge Kozinski would be released as a matter of routine, while an opinion by Judge Reinhardt would be presumptively unreleasable until reviewed closely by a Supreme Court clerk, who would make a recommendation to a designated Supreme Court Justice for decision as to its release.

This system might help contain the Ninth Circuit decay.

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