Bench Memos

Law & the Courts

Judge Kim McLane Wardlaw Makes Her Mark

When the Supreme Court summarily reverses a lower court’s ruling—that is, when it reverses without seeing any need for briefing on the merits and oral argument—that’s ordinarily* quite a black mark for the judge who authored the opinion below. Most federal appellate judges go through their entire careers without such a summary reversal.

And then there’s Ninth Circuit judge Kim McLane Wardlaw (appointed to that court by President Clinton).

The Supreme Court’s unanimous summary reversal two weeks ago in Kernan v. Cuero marks at least the fourth such reversal of a Wardlaw ruling, on top of those in McDaniel v. Brown (2009), Whitman v. Dep’t of Transportation (2006), and Gonzales v. Thomas (2006). It’s almost as if she’s deliberately competing against her colleague Stephen Reinhardt for the Lifetime Summary Reversal Award. (My thanks to the reader who called Wardlaw’s feat to my attention.)

Perhaps not coincidentally, one feature that three of the four Wardlaw rulings share is that Judge Diarmuid F. O’Scannlain—one of the few very bright spots on a dismal court—was in dissent.

* I say ordinarily because there might be instances when the judge below is compelled by badly mistaken circuit precedent to rule as he did.

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