This Day in Liberal Judicial Activism—September 2

2003—In Summerlin v. Stewart, the Ninth Circuit addresses whether the Supreme Court’s decision in Ring v. Arizona, which held that aggravating factors under Arizona’s death-penalty law need to be proved to a jury rather than to a judge, applies retroactively to cases already final on direct review. The limited en banc panel of eleven judges (a creature unique to the Ninth Circuit), consisting in this case of ten Carter/Clinton appointees and one Reagan appointee, divides 8 to 3 in favor of a ruling that Ring applies retroactively. In her dissent, Judge Rawlinson observes that the majority “wanders afield”—and contradicts a very recent Supreme Court precedent as well as rulings from other circuits—in holding that Ring announced a substantive rule. She also disputes the majority’s alternative holding that Ring announced a watershed rule of criminal procedure.

On review, the Supreme Court (in Schriro v. Summerlin) reverses the Ninth Circuit. Not a single justice expresses agreement with the Ninth Circuit’s holding that Ring announced a substantive rule, and Justice Scalia’s opinion takes four brief paragraphs to dispense with the “remarkable” analysis that covered 20 pages of the Ninth Circuit’s ruling. By a vote of 5 to 4, the Court rules that Ring did not announce a watershed rule of criminal procedure. 

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