9th Circuit, Federal Judges

Tell Us How You Really Feel, Judge Bybee!

"Bybee, Circuit Judge... frustrated with the whole endeavor."

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In case you missed it on Friday afternoon — and it’s easy to miss things on Friday afternoons in July (which is why they’re a great time for staff reshuffles and divorce announcements) — the Ninth Circuit, sitting en banc, issued a flurry of opinions in United States v. Martinez-Lopez, a complex sentencing case. The opinions included this gem from Judge Jay S. Bybee (via @Joe_Palazzolo):

The James R. Browning U.S. Court of Appeals Building, the Ninth Circuit’s headquarters in San Francisco.

Legal nerds and #appellatetwitter types will recall this isn’t the first quirky opinion-designation line to come out of the Ninth. Back in 2012, for example, then-Chief Judge Alex Kozinski filed an opinion with this heading: “KOZINSKI, Chief Judge, disagreeing with everyone…” And recall, of course, the fine tradition of the “dubitante” opinion.

Could this be the beginning of a trend? Look for these future opinions from Ninth Circuit judges:

  • “THOMAS, Chief Judge, thoughtfully stroking his beard”;
  • “REINHARDT, Circuit Judge, with whom Circuit Judges PAEZ and BERZON join, knowing SCOTUS can’t catch them all”;
  • “KOZINSKI, Circuit Judge, ¯\_(ツ)_/¯”;
  • “O’SCANNLAIN, Circuit Judge, with whom Circuit Judges TALLMAN, BEA, and IKUTA join, SMH at Circuit Judge REINHARDT’s flouting of Supreme Court precedent”;
  • “GRABER, Circuit Judge, with whom Circuit Judges McKEOWN and GOULD join, being reasonable”;
  • “WARDLAW, Circuit Judge, with whom Circuit Judges CALLAHAN and OWENS join, being fabulous”;
  • “FLETCHER, Circuit Judge, being wily”; and
  • “Judge NGUYEN, Circuit Judge, with whom Circuit Judges WATFORD and FRIEDLAND join, wondering if she’ll still be young enough for SCOTUS consideration in 2021.”

Thanks to Judge Bybee for this nice bit of Friday fun. We certainly fell for it here at Above the Law (just as we are suckers for, say, pop culture citations from Judge Bybee’s colleague, Judge John Owens).

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But we do have some friendly advice for Judge Bybee and other judges contemplating quirkiness in the future: please engage in this practice… judiciously. What makes these oddities so much fun is that they’re rare divergences from the staid and stuffy world of Article III. If everyone starts going there all the time, these moments will lose their specialness and even become annoying — and then we’ll all join Judge Bybee in a state of frustration.

UPDATE (8/1/2017, 3:00 p.m.): In other Ninth Circuit news, could efforts to split the circuit gain traction again with a Republican president? There are reasonable and non-partisan arguments in favor of dividing the court — as laid out by Professor Brian T. Fitzpatrick in this new Law360 article, It May Be Time To Downsize The 9th Circuit.

UPDATE (8/2/2017, 2:45 p.m.): And here’s an interesting argument against a split, from the Republican point of view (by Wyatt Kozinski, following in his father’s footsteps).

United States v. Martinez-Lopez [U.S. Court of Appeals for the Ninth Circuit]

Earlier:

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DBL square headshotDavid Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.

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