Am I always perfectly right? No. I'm sure that this admission rocks the universe. Those with any contact with me assuredly have come to expect perfection. But, sadly, it's an unrealistic expectation. I am a mere human. Fragile. Imperfect. Ocassionally wrong.
Why make this concession now? Well, quite frankly, because it's not looking particularly great for our hero. Back in April, I posted that this opinion -- written by my respected prior employer, Judge Reinhardt -- was one that "may be one of those classic Ninth Circuit cases that just doesn't have staying power." And I said, in my classicly cocky know-it-all fashion, that people should "read this one while you can" because it was exactly the type of case that the Supreme Court and the en banc court like to reverse, and hence it was "far from clear that it'll still be precedent a couple of years from now."
Bold words. Here's the thing, though. The Ninth Circuit didn't take it en banc. Sure, the conservatives tried, and called for a vote. But didn't succeed. Yeah, they got Judge Reinhardt to slightly modify his opinion, and he issued a new one that appears here. And yeah, they got several votes to take the case en banc, and seven of the judges expressly joined a lengthy dissent from the denial. But didn't have enough votes. As a result, the basic holding of the panel opinion persists. Notwithstanding my somewhat contrary prediction.
Okay. So I'm apparently not the Nostradamus of the legal profession. Sue me. (Don't really.) Plus, the Supreme Court still has the opportunity to save me from my shame and to step in -- as I somewhat predicted -- and reverse this bad boy. We'll see if they do. But, if not, I hereby apologize to my former employer. If I was wrong and you were right, I'm sorry that I doubted you. My bad.
P.S. - Sure, I've got my excuses. After all, I wrote my potentially erroneous post on April 15 -- the day on which I filed my tax return, so my mind was undoubted both jumbled (thank you, tax code) and elsewhere. But I'm forced to admit -- to my undying shame -- that the real culprit is that, until six days ago, I hadn't made a recent count of precisely which judges remain to vote on en banc petitions. I should have been smarter and have relied less on my failing (and imperfect) memory. I needed to be less old. If I had been, I perhaps could have seen this vote coming. Damn. I'm about to turn 40. I hate being reminded how old that is. Oh well.
