According to SCOTUSblog’s Circuit Scorecard, the Supreme Court reversed the Ninth Circuit in 15 times out of 16 occasions in the just-concluded Term, including three summary reversals. On at least seven of those occasions, conservative Ninth Circuit judges had objected to that court’s failure to grant rehearing en banc.
Perhaps it’s wishful thinking, but I wonder if the Supreme Court’s smackdowns have caught the attention of some of the more moderate Democratic appointees on the Ninth Circuit. Some evidence for that hope might be found in the Ninth Circuit’s grant yesterday of en banc rehearing in Tomczyk v. Garland.
As I highlighted back in February, the three-judge panel in that case (then known as Tomczyk v. Wilkinson) had split on the seemingly elementary question whether an alien has “reentered the United States illegally” when he was inadmissible at the time of his reentry. Judge William Fletcher, who seems to be competing to succeed the late Stephen Reinhardt as the most aggressive liberal on the Ninth Circuit, wrote the majority opinion. Judge Jay Bybee, a Bush 43 appointee (and my former boss in the Office of Legal Counsel at the Department of Justice) dissented. So the grant of en banc rehearing suggests that a majority of the court thinks that Fletcher got it wrong (or at least didn’t abide by circuit precedent).