Friday, May 06, 2016

U.S. v. Lee (9th Cir. - May 6, 2016)

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."