Bench Memos

Law & the Courts

Supreme Court Smackdown of Ninth Circuit—Part 1

In both of its rulings today, the Supreme Court unanimously reversed the Ninth Circuit, smacking down rogue liberal rulings and vindicating the conservative Ninth Circuit judges who sought en banc review of those rulings. In this post, I’ll address the Court’s ruling in United States v. Cooley, and in my second post I’ll discuss Garland v. Dai.

In his brief unanimous opinion in Cooley, Justice Breyer ruled that “an Indian tribe’s police officer has authority to detain temporarily and to search a non-Indian on a public right-of-way that runs through an Indian reservation” (where such detention and search is based on a potential violation of state or federal law before the suspect is transported to the proper nontribal authorities for prosecution). Breyer quoted the Court’s previous statement in Montana v. United States (1981) that a tribe retains inherent sovereign authority to address “conduct [that] threatens or has some direct effect … on the health or welfare of the tribe.” As Breyer explains, that exception to the general rule that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers “fits the present case, almost like a glove.” In cases since Montana—including, “[m]ost notably,” in footnote 11 of Strate v. A-1 Contractors (1997), the Court has “reserved a tribe’s inherent sovereign authority to engage in policing of the kind before us.” Breyer also expressed “doubts about the workability of the standards that the Ninth Circuit set out” and observed that the “problem of interpretation” raised by one of its standards “could arise frequently.”

Judge Marsha Berzon wrote the panel ruling in Cooley and was joined by Judge Andrew Hurwitz and visiting Fourth Circuit judge Stephanie Thacker. Judge Daniel P. Collins, joined by Judges Bea, Bennett, and Bress, wrote a long and thorough opinion (pp. 11-48 here) dissenting from the Ninth Circuit’s refusal to rehear the case en banc.

In light of the Supreme Court’s smackdown, it’s particularly amusing to note how strident Berzon and Hurwitz were (pp. 3-11 here) in disputing Collins’s dissent. They asserted that Collins’s dissent is an “outlier” “[e]ven within the questionable genre of dissents from denial of hearing en banc” and that it “misrepresents the legal context of the case and wildly exaggerates the purported consequences of the panel opinion.” Whereas Collins had invoked the exact passage from Montana that Breyer said “fits the present case, almost like a glove,” Berzon and Hurwitz maintained that their panel ruling “is not in conflict with a Supreme Court decision.” Whereas Collins also relied on the footnote in Strate that Breyer found “most notabl[e],” Berzon and Hurwitz dismiss that footnote as “brief and tentative.” And whereas Collins objected to the “practical problems” that, as Breyer recognized, “could arise frequently” from the panel decision, Berzon and Hurwitz contended that the “practical implications are limited.”

Addendum: As law professor Derek Muller points out, Collins’s dissent from rehearing en banc in Cooley played a large part in the not very collegial anonymous attack by several “veteran” Ninth Circuit judges on the supposed lack of collegiality of their new colleagues appointed by Donald Trump. So that attack now looks even more foolish.


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