Judge Walker isn’t the only judge whose impartiality and judgment the Supreme Court’s opinion expressly calls into question. Ninth Circuit chief judge Alex Kozinski, who engaged in joint gamesmanship with Walker, also receives blame (in his capacity as chair of the Ninth Circuit Judicial Council) for evading procedural rules in order to broadcast the anti-Prop 8 trial and for hastily adopting a pilot program without putting in place carefully considered guidelines. (See, e.g., slip op. at 12, 14, 15.)
Kozinski—whom, I repeat, I regard as an excellent judge when he’s not indulging his willfulness—has earned a reputation as a headstrong maverick. I’m sure that it’s no secret to the justices that he’s resorted to other hijinks to favor the cause of same-sex marriage, and it’s a safe bet that his actions in this case deepened their distrust of him.
The Ninth Circuit’s history of lawlessness means that any adventuresome ruling it makes reaches the Supreme Court with special suspicion attached to it. Kozinski’s course of conduct makes it likely that any Ninth Circuit ruling in favor of a constitutional right to same-sex marriage will be even more suspect.
It would also be good for Kozinski to provide transparency—if not with the public, at least with his Ninth Circuit colleagues—on any further procedural decisions in this case (including panel assignment on appeal) to ensure that they are regular.