THE COURTS

Reversals Of Fortune

Ninth Circuit's Gets A Bad Rap As Wacky, Rogue Court

There they go again.

The court that ruled the Pledge of Allegiance unconstitutional June 26,
because schoolchildren are required to say "one nation under God," is the
same Ninth U.S. Circuit Court of Appeals that was overruled 27 out of 28
times by the Supreme Court in 1996-97.

It's the same San Francisco court that has been overruled unanimously when
it declared that terminally ill patients had a constitutional right to die
and that patients with a medical necessity for marijuana could use it
without violating federal law.

It's the court about which then-U.S. Supreme Court Justice William
Rehnquist observed in 1984 that some of its judges "have a hard time saying
no to any litigant with a hard-luck story." And it is the court whose own
Judge Alex Kozinski commented in 1997 that it charted an independent course
because "we're three time zones away from the Supreme Court and thus very
far from the flagpole."

So the latest ruling, denounced by politicians from President Bush to Gov.
Gray Davis to Jerry Brown and condemned 99-0 by the Democratic- controlled
U.S. Senate, must have been the last straw, right? The one that opens the
door to an influx of Bush appointees to tug the court back to the
mainstream and finally prods Congress into breaking up the sprawling
nine-state appellate circuit?

Not really. For one thing, the court isn't done with the pledge case.
Nearly everyone close to the process -- including Judge Alfred Goodwin, the
Richard Nixon appointee who wrote last month's 2-1 panel decision --
expects the full court to order a rehearing before an 11- judge panel.
That's assuming the entire case isn't derailed by the recent disclosure
that the 8-year-old child in the case is a Christian who doesn't mind
pledging allegiance to a flag that represents "one nation under God,"
according to her mother.

The ruling also gave conservative lawmakers a platform to split the circuit,

which they have assailed for decades as too unwieldy and California- dominated.

(Last week, the House Judiciary Committee held a hearing on a breakup bill,
but it probably won't even come up for a vote this year.)

Whatever happens to the pledge case, the concept it perpetuated -- that the
Ninth Circuit is a rogue, far-left court -- is overblown.

Supreme Court reversal rates are rough measures; the court, after all,
reverses most of the lower-court decisions it agrees to review, and reviews
only a minute fraction of thousands of appellate rulings each year. Still,
the Ninth Circuit's reversal rate has declined from its '96-97 peak; this
year was 72 percent, or 13 out of 18 -- the national average.

The Supreme Court unanimously overruled the circuit in one major case this
term, finding that public housing tenants could be evicted for drug use by
any household member even if they were unaware of it. But the justices
upheld two other significant cases: allowing land-use agencies to freeze
development temporarily without incurring damages and overturning a law
that banned computer-generated images of minors engaged in sexual activity.

"It's a much more varied picture than the one you would get if you just
think about 1996-97," said Arthur Hellman, a law professor at the
University of Pittsburgh and a leading authority on the Ninth Circuit,
whose central legal staff he once directed.

It's also a different court than it was five years ago.

Historically, the Ninth Circuit was relatively conservative until the late
1970s, when a Democratic Congress approved a 10-judge expansion for
President Jimmy Carter. The new appointees, including such stalwart
liberals as Stephen Reinhardt and Betty Fletcher, pushed the appeals court
leftward even as the Supreme Court -- to which Carter never made an
appointment -- was moving to the right.

The ideological gap remained despite 12 years of Republican administrations
that left the circuit about evenly split between Republican and Democratic
appointees. But the gulf narrowed somewhat during the terms of President
Bill Clinton, whose appointees now count for 13 of the Ninth Circuit's 23
active judges. Most newcomers have staked out centrist positions, voting
with the court's conservative wing about as often as with Reinhardt or
Fletcher.

It's partly a reflection of Clinton's cautious approach to the judiciary
and partly a result of two decades of divided government, in which a Senate
controlled by one party acts as a restraint on judicial nominations by the
opposing party, said Ninth Circuit watcher Thomas E. Baker, who teaches
constitutional law and federal courts at Florida International University.

That dynamic may be at work now as the Senate considers Bush's three
nominees to the circuit, which has five vacancies. Two appear to have
smooth sailing but the third, Carolyn Kuhl, a Los Angeles judge with a
conservative record, faces formidable opposition from abortion-rights groups.

There have been other restraining influences. Supreme Court Justice Sandra
Day O'Connor, in her regular appearances at the Ninth Circuit's annual
conference, has prodded the appeals court to rein in some of its
three-judge panel decisions by making greater use of the 11-judge rehearings.

Hellman said the circuit now grants about 20 such rehearings a year, double
its rate in the early 1990s, and the Supreme Court has left the resulting
decisions largely intact.

Self-image also may be a factor.

"If you talk to a Ninth Circuit judge, they're sensitive about the reversal
rate that gets in the newspapers," said Baker. "A Ninth Circuit judge
doesn't want to be on the court that Jay Leno makes fun of."

Still, appeals courts weren't meant to be cookie-cutter images of one
another. The courts of last resort for all but a relative handful of cases
in the federal system, the 12 regional tribunals mix the same ingredients
- -- the political process that put them on the bench, life tenure that
shields them from political reprisals, regional differences and historical
quirks -- with widely varying results. The Supreme Court steps in about 80
times a year to reconcile disparities, and the remaining conflicts are left
to the ingenuity of lawyers and politicians and the slow workings of history.

For every liberal ruling from the Ninth Circuit, there's a conservative
decision from the likes of the Fourth Circuit in Richmond, Va., which
opined in 1999 that the Supreme Court's famous Miranda ruling was no longer
binding. The high court disagreed.

"Many judges take the view that a court can endure some wrong decisions,
because eventually the law will change if that's the way it's meant to go,"
said Hellman. "Later cases will chip away at it, qualify it, confine it.

"It's very healthy to have a court as lively as the Ninth Circuit where
issues will be debated. People change their minds, the law will evolve over
years, some panels make mistakes, but they will be corrected over time."