Last week I was a moderator for a very distinguished panel at my alma mater, Southwestern University School of Law, regarding the recent activities of the 9th Circuit Court of Appeals. Three dynamic speakers helped illustrate some contemporary cases and possible ramifications after some opening remarks by Southwestern Professor Joerg W. Knipprath.
Professor Karen Smith discussed an individual’s right to privacy pursuant to the Fourth Amendment. In U.S. vs. Seljan, the Court held that a custom agent’s review of a letter containing pedophilia-laden language that defendant attempted to send to an underage girl in the Phillipines is constitutional. Professor Smith pointed out Chief Justice Kozinski dissenting opinion, namely that a freewheeling interpretation of the 4th Amendment could stem from this decision. In Justice Kozinski’s words, “every envelope containing birthday cards or trade secrets, every e-mail, every diary, every laptop that crosses the border can be opened and its contents ready by government agents, without a warrant or even founded suspicion.” Professor Smith closed by inviting the audience “to consider what will this mean for border searches…how far this majority opinion may encourage border officials to read and keep reading the material that was sent using this authority from the Constitution.”
Mr. Horace Cooper, Fellow with the Institute of Liberty, discussed the case of Marshall vs. Marshall. Mr. Cooper provided a brief opinion of the 9th Circuit, stating its “range and scope of topics are nothing short of remarkable.” One fundamental point is the difference in creativity “encouraged in litigation in the 9th Circuit as opposed to other courts. It is the largest and most active, and the place where the most creative arguments are made.” After reading the facts of the case, he lamented that a precedent [a win for Howard K. Stern] could threaten “every single American’s estate of any substantial value” and decreed the tactics of the bankruptcy, forum shopping ploy, in the midst of the Texas probate hearing “creative and audacious… This is why the 9th Circuit matters – it’s very important we get a chance to see that this case…(is) a property right, a fundamental principle. You have a right to decide how you’re going to distribute your assets and that the court isn’t going to allow clever legal machinations as a way to do so.”
Deputy Legal Director and Senior Fellow of the Heritage Foundation, Mr. Robert Alt, presented startling statistics regarding the 9th Circuit: 13,000 cases are reviewed annually. He pointed out the 9th Circuit’s interplay with the United States Supreme Court: 20% of Supreme Court cases are 9th Circuit appeals, substantially higher than any other federal, or, state court. The reversal rate is 88.9% and a large portion of cases that the Supreme Court actually hears result in a unanimous decision. A reversal is the “harshest medicine” the Supreme Court grants without hearing oral arguments or merit briefing. To have this particular “medicine” shows you have interpreted the law so boldly wrong that there is just no argument to be made. Judge Stephen Reinhard, a frequent recipient of this medicine, has a famous phrase: “You can’t catch ‘em all, but the Supreme Court does its best to try.” In 1997, he had 7 cases overturned unanimously.
Bush nominees have had some mark on the Court, but not much and one of the few exceptions is Judge Carlos T. Bea, known as the “Great Dissenter” to whom the Supreme Court has taken notice. Mr. Alt asked the audience to watch 3 current cases: Dukes vs. Wal-Mart, the largest class-action suit in U.S. history; Salazar vs. Buono, whether a war memorial cross maintained by the National Park Service is deemed an unconstitutional governmental endorsement of religion; and, Boy Scouts of America vs. Barnes-Wallace, where the Boy Scouts are asking the Court to determine whether plaintiffs have standing to bring an Establishment Clause challenge to San Diego leases of recreational facilities, when they never visited the facilities which are available for use by the public, and display no religious symbols.
For those of you who were unable to attend this event, and are interested in more information, please feel free to contact me. Otherwise, I look forward to seeing you next time!
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May 6th, 2009
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