1978—President Jimmy Carter signs into law Public Law 95-486, which creates 35 new federal appellate judgeships (as well as 117 new federal district judgeships)—a 36% increase in the number of federal appellate judgeships. Among other things, the law raises the number of Ninth Circuit judges from 13 to 23.
With the aid of Senate Judiciary Committee chairman Teddy Kennedy, Carter will succeed in filling all but one of those seats during his final two years in office. Carter appointees to new seats on the Ninth Circuit will include arch-activists Stephen Reinhardt, Harry Pregerson, Betty B. Fletcher, Warren J. Ferguson, and Mary M. Schroeder. Among the many judges Carter will appoint to new seats on other circuits are Abner Mikva and Patricia Wald (D.C. Circuit), Stephen Breyer (First Circuit), and Boyce F. Martin Jr. (Sixth Circuit).
2006—Another Ninth Circuit ruling, another unanimous reversal by the Supreme Court. Fifteen days earlier, a two-judge motions panel of the Ninth Circuit, consisting of Clinton appointees A. Wallace Tashima and William A. Fletcher, had issued a four-sentence order enjoining Arizona from enforcing the voter-identification provisions of its Proposition 200 in the November 2006 election. In its per curiam reversal (in Purcell v. Gonzales), the Supreme Court observes that the Ninth Circuit panel “fail[ed] to provide any factual findings or indeed any reasoning of its own” and failed to give appropriate deference to—or even to await—the factual findings underlying the district court’s determination that a preliminary injunction was not warranted.
2022—In a bonkers—or, as one law professor puts it, “batsh*t crazy”—ruling (in Henderson v. Thompson), the Washington supreme court declares that defense counsel in a tort case “called on racist tropes” and “evoke[d] the harmful stereotype of an ‘angry Black woman’” when he described the plaintiff’s testimony as “confrontational” and “combative.” The court rules that the trial court, in deciding whether to grant the plaintiff’s request for a new trial, should have asked “whether an objective observer (one who is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have influenced jury verdicts in Washington State) could view race as a factor in the verdict.” If the answer is yes, as the supreme court says it is, then the trial court “must presume” that racial bias affected the verdict. The party seeking to uphold the verdict “must prove how it did not.”
In July 2023, Justice Samuel Alito, joined by Justice Clarence Thomas, will concur in the Supreme Court’s denial of the defendant’s certiorari petition “because this case is in an interlocutory posture [i.e., it’s not over], and it is not clear whether it presents any ‘federal issue’ that has been ‘finally decided by the’ Washington Supreme Court.” But Alito will explain that the Washington supreme court’s decision “raises serious and troubling issues of due process and equal protection”: It “appears to mean that in any case between a white party and a black party, the attorney for the white party must either operate under special, crippling rules or expect to face an evidentiary hearing at which racism will be presumed and the attorney will bear the burden of somehow proving his or her innocence.” “[F]ar from combating racism, [it] institutionalizes a variation of that odious practice.”
2023—A Ninth Circuit panel rules (in Redd v. Guerrero) that Stephen Redd, an indigent prisoner who had been convicted and sentenced to death, was entitled to pursue his claim that his 26-year wait for appointed counsel to litigate his state habeas corpus petition violates the Due Process Clause of the Fourteenth Amendment. The panel acknowledges that California had no federal constitutional duty to provide habeas counsel, but it holds that because California had “guaranteed the appointment of such counsel by statute,” it had “deprived [Redd] of a valuable property interest for over a quarter century.”
Redd’s death (at age 78) two months later will lead California to request that the panel vacate its ruling on mootness grounds. In December 2024, seven Ninth Circuit judges will vigorously object to the court’s failure to vacate the ruling. “The question presented to the panel,” Judge Mark Bennett’s dissent argues, “was purely one of state law: whether California law guarantees appointment of habeas counsel within a certain time frame.” On this question, “the panel should have determined how the California Supreme Court would have answered the question,” and “[h]ad it done so, the panel would have been compelled to conclude that California law does not guarantee appointment of habeas counsel within a certain time.” The panel opinion “will have deleterious practical effects” by straining California’s overtaxed judicial resources, as “[a]ll or some of the 362 prisoners similarly situated to [Redd] will likely file claims similar or identical to Redd’s.”