The title of this post might make you suspect that a Ninth Circuit panel reversed a district court’s denial of habeas relief. But what happened today in Kelsey v. Garrett is much rarer than that: A Ninth Circuit panel granted a petition for rehearing of its ruling that had reversed a district court’s denial of habeas relief, and it issued a new ruling affirming the denial of habeas relief. In other words, the panel reversed itself and denied relief.
I’m going to speculate that today’s ruling is another sign of the influence of the ten judges that Donald Trump appointed to the Ninth Circuit. Let me explain why I think so.
In its initial ruling in May, the Ninth Circuit panel divided two to one. Judge Ronald Gould (a Clinton appointee) wrote the majority opinion granting habeas relief, and Judge Paul Watford (an Obama appointee) joined it. Judge Susan Graber (a Clinton appointee) dissented.
Watford resigned from the court at the end of May, and Judge Michelle Friedland (an Obama appointee) was drawn to replace him on the panel for purposes of handling any further proceedings. The Nevada officials who are defendants in the case then filed both a petition for rehearing and a petition for panel rehearing and a petition for rehearing en banc.
One possibility is that Friedland simply reviewed the case, decided that Gould was wrong and that Graber was right, and persuaded Gould to trash his published opinion and join a per curiam unpublished opinion in favor of Nevada officials. That would be a remarkable achievement by Friedland, and perhaps it’s what happened. But given that Friedland is generally more liberal than Watford as well as Gould, that strikes me as unlikely.
I will guess instead that the panel ruling in May, thanks in part to Graber’s fine dissent, attracted a lot of en banc attention from conservative and moderate judges on the court and that Gould and Friedland figured out that if they did not join Graber in affirming the district court, the court would grant rehearing en banc.