Bench Memos

Law & the Courts

Today’s Summary Reversals Continue a Pattern

In its list of orders today, the Supreme Court included two unanimous summary reversals—reversals, that is, without the Court’s seeing any need for briefing on the merits and oral argument. These summary reversals continue a broader pattern in which the Court has seen fit to chastise liberal panels of the Sixth Circuit and the Ninth Circuit for lawless rulings on issues of qualified immunity and habeas relief.

In City of Escondido v. Emmons (pp. 27-32 of the order list), the Court did not disguise its bewilderment at a cursory unpublished Ninth Circuit ruling that reversed the determination by a district judge (a Clinton appointee, as it happens) that two police officers accused of using excessive force in an arrest were entitled to qualified immunity. The Court points out that the panel’s “entire relevant analysis” of the qualified-immunity question consisted of a single sentence that stated the general tautology that the “right to be free of excessive force was clearly established at the time of the events in question” and that cited a Ninth Circuit precedent in support of that tautology.

The Court finds “quite puzzling” that the panel “offered no explanation for its decision” to deny qualified immunity to one of the officers, as the district court had determined that there was no evidence that that officer had any involvement in the contested use of force. As for the other officer, the Court explained yet again that in order to be “clearly established,” a right must have been “defined with specificity.” It faulted the panel for failing to ask the right question.

The members of the Ninth Circuit panel who earned dishonorable recognition were Susan Graber (a Clinton appointee), Andrew Hurwitz (an Obama appointee), and Algenon Marbley (a Clinton appointee to a district judgeship in Ohio, sitting by designation).

In Shoop v. Hill (pp. 33-40 of the order list), the Court faulted a Sixth Circuit panel in a habeas case for “rel[ying] repeatedly and extensively” on a 2017 Supreme Court ruling in determining whether the decisions of the Ohio courts in 2008 and earlier were contrary to then-existing Supreme Court precedent. The panel had tried to cover its tracks by asserting that the 2017 ruling was “merely an application of what was clearly established by” a 2002 Supreme Court precedent. But the Court emphatically (and, again, unanimously) rejected that claim.

The members of the Sixth Circuit panel were Gilbert Merritt (a Carter appointee), Karen Nelson Moore (a Clinton appointee), and Eric Clay (also a Clinton appointee).

(Careful Bench Memos readers might recognize most, if not all, of the names of the six members of the two panels.)

Most Popular


Political Theatrics

EDITOR’S NOTE: The following is Jonah Goldberg’s weekly “news”letter, the G-File. Subscribe here to get the G-File delivered to your inbox on Fridays. Dear Reader (Including all you whippersnappers under the age of 50), I’m writing this from somewhere over the Atlantic. At least I hope that’s ... Read More

The Real Reasons American Evangelicals Support Israel

It never fails. Whenever a Republican president makes a controversial or contentious move to support Israel -- such as moving the American embassy to Jerusalem, or yesterday’s decision to recognize Israeli sovereignty over the Golan Heights -- you’ll see various “explainers” and other stories that purport ... Read More
White House

Mueller Report Delivered to Attorney General

Special Counsel Robert Mueller on Friday evening delivered a report to attorney general William Barr detailing his nearly two-year investigation into Russian interference in the 2016 election and possible collusion with the Trump campaign. Barr will now be tasked with deciding what information from the report ... Read More