Thursday, September 24, 2020

Torres v. Barr (9th Cir. - Sept. 24, 2020)

This one is not entirely unexpected.

A Ninth Circuit panel unanimously decided around a year ago that Catherine Torres (and people like here) were eligible to be deported from the Commonwealth of the Northern Marianas Islands. 

That wasn't surprising, since there was an on-point Ninth Circuit decision from a couple years back that expressly so held. Binding circuit precedent and all.

But a concurrence was filed arguing that this prior circuit precedent was wrongly decided. That concurrence was joined by . . . all three judges on the panel. 

That's meaningful. Even more meaningful when it's signed by not only Judges Berzon and Wardlaw, but also by Judge Bennett, Trump's first Ninth Circuit appointee. That suggests some bipartisan support. So, predictably, the case gets taken en banc.

You might well be thinking: "Well, the case they're thinking about overruling is only three years old, and was unanimous. Surely the judges on that case aren't going to vote to overrule it." And you could easily be right.

But the author of that opinion, Judge Bea, went senior last year. So he's not eligible for the en banc vote. Judge Hawkins, who joined the opinion, is also senior. And the third member of the panel, Judge Kozinski, resigned from the court the same year the original case was decided.

Leaving none of the original judges to support the thing.

So the en banc panel gets drawn, and it contains (not unexpectedly) a healthy mix of judges from all sides of the political aisle. But no matter. It's unanimous. The prior opinion gets overruled.