This one's actually a bit of a surprise to me. Yeah, I know the 9th Circuit often gets slapped for being liberal, but it's a reputation that's actually way overplayed. But then a case like this comes along. Which is (1) a death penalty case, (2) previously taken en banc in which the 9th Circuit reversed the death penalty, (3) to which the Supreme Court responded by granting certiorari and reversing (and remanding), and (4) as to which the en banc court (on remand) now again reverses the death penalty, this time on a different issue.
Pretty bold. Not necessarily wrong, of course. But reasonably bold. Especially since the murder in question occurred over 24 years ago and the petitioner has been on death row for over two decades now. Not exactly the type of person for whom the Supreme Court is typically expected to have a lot of sympathy. This is also precisely the kind of case that conservatives scream about when they complain about liberal justice. The guy's a murderer and has been sentenced to die. So kill him, already. So sayeth some.
Since this is the anticipated reaction by at least some observers, I was somewhat surprised at not only the result (a reversal), but also the vote. 10-1. Pretty unusual. Especially for a post-remand case such as this, in which you've got to be at least a little bit worried that the Supremes are itching to spank you back down if you again reverse the death sentence on remand.
Admittedly, the en banc court is granted a little freedom since the decision in the Supremes the first time the case went up was 5-4. So it's not like what transpired before was one of those bench-slaps that the Supremes occasionally give the 9th Circuit. Still, you gotta be a little worried, don't ya? At least enough to stop it from being 10-1?
As a result, my initial reaction was that this must be a pretty strong case; one in which the death penalty really was imposed improperly. Since that's the only way they'd get 10 votes. But then I saw who was on the en banc draw. Wow. Three Carter appointees (Schroeder, Pregerson, and Reinhardt). One Reagan (O'Scannlain). And the entire remainder Clinton. No Bush I. No Bush II. And guess who's the 1 in the 10-1? You got it. Diarmuid. So it lines up exactly as one might expect. It's just that, this time, that means a 10-1.
Which in turn generated several thoughts. First, how often is the en banc court really that politically skewed? Statistically, it's gotta be pretty rare. Second, did this skew in this particular case have anything -- anything at all -- to do with the decision by the 9th Circuit two weeks ago to increase the size of en banc panels to 15 (from 11)? You gotta admit that the timing is, at a minimum, pretty fortuitous. Third, and finally, where the hell did all the hard-core conservatives go? You almost always see a pack -- sometimes a pretty big pack -- of them on the en banc panels, and you definitely see them all the time on three-judge panels. Where are they now?
Their absence from this draw made me go back and look at the composition of the court, which I haven't actually counted for quite a while now. Amongst the actives, one-third are Republican appointees (2 for Regan and Bush I and 4 for Bush II) and two-thirds are Democratic appointees (3 Carters and 13 Clintons). This is a quite a bit more skewed than I would have thought for the relevant years in question. Which in turn made me ponder why that's the case. Did Clinton appoint younger judges? I don't think so. Did the judges appointed by Reagan and Bush I decide to go senior (and hence be ineligible for an en banc draw) faster than their Democratic counterparts? I was interested enough in the latter query to actually start pulling data to try to figure it out. It'll take a while: There are a lot of judges out there. But I'll keep you apprised.
Anyway, a weird one. Interesting. But weird. Not a case where I'd have predicted a 10-1 just looking at the underlying issue and procedural posture.