Judge Hawkins writes an extremely well-written dissent to the majority's en banc decision. So good, in fact, that you should read it at length. It really is exceptionally well done.
I say that, mind you, even though I may well have been in majority on this one. Or at least have somewhat leaned that way as a practical matter.
The issue is about interlocutory appellate jurisdiction over suppression order in criminal cases. Section 3731 permits the United States to appeal an order of the district court that, inter alia, suppresses evidence in a criminal case upon the filing of a certification by the U.S. that the suppressed evidence is important and the appeal not taken for the purpose of delay. So the question then becomes whether that bare certification alone creates jurisdiction or whether those alleged facts actually have to be true.
For 30 years or so, the Ninth Circuit has held the latter. But the en banc court overrules this prior circuit precedent and says that the plain text of the statute suggests that the certification itself is sufficient. The dissent says that this is both a misreading of the statute as well as very dangerous, since it effectively makes the U.S. its own judge of the merits, without oversight by a neutral judiciary. But the majority says that we can trust U.S. Attorneys to be honest, and that if they're not, there are things we can do to expedite the appeal or get them in trouble.
It's a good debate, especially since the policy analysis focuses a lot on whether it makes sense to give carte blanche to bare, unsupported certifications of a party. Personally-- and I admit my own prejudice here -- I think that Judge Fisher makes a darn good point in the majority opinion that since the relevant U.S. Attorney has to get permission from the Solicitor General to appeal, we can be pretty confident that there's some real oversight going on. Personally, I tend to trust the SG's office, which goes to great lengths to preserve its credibility. Perhaps I'm a fool in that regard. But I like 'em. And trust that office a lot, lot more than any individual U.S. Attorney's Office. So I think that, as a practical matter, what Judge Fisher says makes sense to me.
But it does give Judge Hawkins an opportunity to make a variety of really excellent points, and in an extremely wonderful way. For example, in footnote 9, Judge Hawkins says the following, which I totally loved: "While I have great respect for the author of the Opinion distinguished
prior service as a senior Department of Justice official [Judge Fisher was an Associate Attorney General] , I wonder if recent experience might suggest that the comfort he finds in the supervision of Main Justice officials over the activities of United States Attorneys might not always be well placed. See John McKay, Train Wreck At the Justice Department: An Eyewitness Account, 31 Seattle U. L. Rev. 265 (2008)." Wonderful! In the same vein, here's the penultimate paragraph of the dissent: "Like the majority, my hope and expectation is that the government will act wisely and carefully when deciding whether to pursue an interlocutory appeal, and that its unchecked ability to do so will not diminish the independent judgment of district judges in the making of important evidentiary rulings. Unlike the majority, though, I would measure that confidence with caution. To paraphrase a former President, I would “trust, but verify.” [quoting President Reagan]."
How awesome is that?