Judge Ikuta has a message for her colleagues on the Ninth Circuit. She writes, in dissent:
"The Ninth Circuit has a knack for disregarding the
Supreme Court. Sometimes it simply ignores the Supreme
Court. See Harrington v. Richter, 562 U.S. 86, 92 (2011)
(“[J]udicial disregard [for the Supreme Court’s habeas
jurisprudence] is inherent in the opinion of the Court of
Appeals for the Ninth Circuit here under review.”). Other
times it reads the decisions of the Supreme Court in such a
peculiar manner that no “fair-minded jurist” could agree. See
Nevada v. Jackson, 133 S. Ct. 1990, 1993 (2013) (“No fairminded
jurist could think that [the Supreme Court case at
issue] clearly establishes that the enforcement of the Nevada
rule in this case is inconsistent with the Constitution.”).
Occasionally it even thinks it is the Supreme Court. See
Lopez v. Smith, 135 S. Ct. 1, 4 (2014) (scolding the Ninth
Circuit for granting habeas relief based on its own precedent,
where AEDPA requires that a state court decision violate
clearly established federal law as established by the Supreme
Court, “not by the courts of appeals”). But this is the first
time I’ve seen the Ninth Circuit decide a criminal defendant’s
direct appeal based on law that the Supreme Court has just
overruled without even considering whether the new rule
applies."
