Thursday, March 19, 2009

Fisher v. City of San Jose (9th Cir. - March 11, 2009)

Want to see another case in which the en banc draw definitely matters? Here you go.

It's a case about $1. Or about the sanctity of the home. Or about warrants. Or about the needs of the police to respond to emergencies. It depends on who you ask. What everyone agrees is that the plaintiff here was a guy who needs to drink less and stop making threats and pointing guns and people. Especially in combination.

Here are my brief comments about the case when the initial opinion (by Judge Berzon, with a dissent by Judge Callahan) came out a couple of years ago. The case then gets taken en banc, which ultimately reverses (both the panel as well as the district court) on a 6-5.

Who are the five dissenters? The civil libertarians, keen on the warrant requirement. Two Carter appointees -- the longstanding liberals Reinhardt and Pregerson -- as well as two Clinton appointees, Thomas and Paez. Plus Chief Judge Kozinski, representing the libertarian crowd.

Who are the six in the majority? Four strong conservatives -- Judges O'Scannlain, Rymer, Bybee, and Randy Smith -- plus Judge Tallman (a reliably conservative Clinton appointee) and Judge Gould (Clinton). Change even one of these six draws with your average Ninth Circuit judge and I think the case goes the other way. Not by much, mind you. But the other way.