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The Bottom Of The 9th

Slate's Supreme Court watcher, Dahlia Lithwick, has an interesting article on the lunacy of the 9th Circuit Court. The opinions are so convoluted that even the prevailing parties are hard pressed to defend the opinions before the Supreme Court.

There must be some unwritten opinion-writing law for 9th Circuit judges that holds:

Where at all possible, decide close cases for the defendant, particularly if he is indisputably guilty. Take the most extreme possible position you can, then craft a holding that reaches far beyond the facts of this case. Under no circumstances shall you cite controlling authority from the Supreme Court, or contradictory cases from your own or other circuits. Strive to write the opinion as though you are God and you invented The Law yesterday.

I'm in the odd position of having witnessed two oral arguments in two consecutive weeks at which the party who prevailed in the 9th Circuit is unable to defend its reasoning. Increasingly, it feels as if there are always three parties at oral argumentóboth parties to the dispute and the 9th Circuit, lingering there, incomprehensible to all.

Read the rest of the article.

Maybe we need to start docking judicial pay for reversals.


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