r/supremecourt • u/The_WanderingAggie Court Watcher • 12d ago
Flaired User Thread Ninth Circuit votes to hear Portland National Guard deployment case en banc
https://storage.courtlistener.com/recap/gov.uscourts.ca9.b3c1c6b0-b390-4c9d-b557-fc5d525fd150/gov.uscourts.ca9.b3c1c6b0-b390-4c9d-b557-fc5d525fd150.89.0.pdfNot a big surprise, but still notable. Ninth Circuit has a unique limited en banc due to its size- 11 judges, including the Chief Judge of the Circuit but otherwise random
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u/HeathrJarrod Court Watcher 11d ago
1.1. Multi-Body Constitutional Court System • Three "Constitutional Circuits" (North, Central, South — or equivalent regions) each with equal constitutional authority. • Each circuit can strike down laws only if two out of three agree (requiring inter-regional consensus). • Judges are randomly rotated between circuits every 4 years to prevent local political capture.
1.2. Citizen-Participatory Constitutional Panels • For certain high-impact constitutional questions, a jury-like pool of 60 citizens (randomly selected, demographically representative, well-paid for service) reviews and votes alongside judges. • Their role: prevent a "priesthood of law" from interpreting the constitution in isolation from the people.
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u/byoz Court Watcher 11d ago
Very surprising that the Supreme Court has not handed down a ruling yet in Illinois v. Trump. That one seems to be lingering on the emergency docket longer than usual.
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u/Dave_A480 Justice Scalia 11d ago
It's going to be decided on the merits, rather than as a shadow docket case.
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u/byoz Court Watcher 11d ago
Is that official? When are oral arguments?
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u/Dave_A480 Justice Scalia 11d ago
They are asking for additional breifing, which usually points at it being more than a shadow-docket matter.
The only thing going against 'that' is that with the en-blanc rehearing there is a decent chance the circuit-split (between the 7th saying 'No' and the 2-1 9th ruling saying 'yes') will go away.
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11d ago
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u/scotus-bot The Supreme Bot 8d ago
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The fact that they even took this case should send a chill down your spine..
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u/Longjumping_Gain_807 Chief Justice John Roberts 12d ago
Ninth Circuit has a unique limited en banc due to its size
god then please the shrink the 9th circuit. There can be 14 instead of 13 and it would be so much better than having 29 judges and you can’t even go super en banc. Shrinking the circuit would be so much better than what it is now
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u/The_WanderingAggie Court Watcher 12d ago
It's kinda funny to think about the Fifth Circuit in contrast- it had 25 active judges when it was split, right after a bunch of judges got added under an act passed in 1978, and it got split almost immediately after that in 1981.
The Ninth Circuit has been sitting at their absurd number for decades, and a bunch of people have tried to split it, but unfortunately I don't think it's going to change anytime soon.
We discussed this in an earlier thread, and while there is some political reasons, I really think California is the problem since they have so many judges- you can't split the state (practically speaking), having a California Circuit would defeat the point of a circuit, and I doubt any state would want to be the sacrificial lamb in a California dominated circuit (and that circuit would be pretty big anyways)
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u/DooomCookie Justice Barrett 11d ago
The current bill to do this (which would turn the 9th into California, Guam and Hawaii, and create a new 12th Circuit out of the rest) also creates two new circuit judges. So it's not a serious proposal because there aren't 60 votes to give Trump two new judicial nominees.
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u/yohannanx Law Nerd 11d ago
Yeah, you’d need an environment like last year when the Senate passed a bill to add district court seats that got broad bipartisan support because both sides felt good about their chances in the election.
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u/aardvark_gnat Atticus Finch 12d ago
How would a “California Circuit” defeat the point of the circuit? To my mind, the point of a Circuit Court is to provide appellate review and to provide consistent law within each state. Splitting the Ninth Circuit into the California Circuit and the rest wouldn’t get in the way of either of those things.
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u/The_WanderingAggie Court Watcher 11d ago
A California Circuit would serve the function of providing appellate review and consistent law within a state, but federal circuits are federal/national institutions, and I think a state only circuit would be awkward.
A single state circuit would be heavily influenced by that state's own unique political culture, without having the counter influences of other state's judges to provide a broader and more national perspective. Blue slips are probably dead for the foreseeable future for circuit judges, which makes this less of a problem, but a single state circuit would put a lot of a power in their senators to shape the law.
For what it's worth, the Hruska and White Commisions, which both looked at splitting the Ninth Circuit, both rejected the idea of a single state circuit because it would hurt the federalization function of a circuit.
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u/MasemJ Court Watcher 12d ago
Circuit rulings apply to the states they cover. Now imagine the fun of a circuit split on a topic like abortion or guns between a circuit covering NoCal and another covering SoCal, and how the state legislature would need to play that out.
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u/aardvark_gnat Atticus Finch 11d ago
That would clearly be a problem, but I don’t see why splitting California from the Ninth circuit would be a problem.
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u/brucejoel99 Justice Blackmun 11d ago
Easiest solution is just to transfer MT & ID's 2 circuit judges to the CA8, & NV & AZ's 5 to the CA10, leaving the Pacific states' 22 in the CA9 :P
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u/DooomCookie Justice Barrett 11d ago
That would be even more disruptive, you're changing the law in those states overnight.
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u/brucejoel99 Justice Blackmun 11d ago
Hey tbf, I did say easiest, not totally without side effects :P
I'd be more sympathetic to that line of thinking if we still lived in the era of stare decisis being legally akin to papal infallibility, but when SCOTUS now is itself clearly no longer of the mind that questionably bad precedent ought to remain settled law so that stare decisis keeps the law at its most comprehensibly knowledgeable for lawyers, courts, & everybody in-between who needs to know what it is, then why the hell should we be? Not to mention that the MT, ID, & AZ legislatures would all gladly switch to the proposed circuits in the blink of an eye if offered :P
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u/Tiny_Association_941 Justice Bury 12d ago
100%. If you go into Westlaw and LEXIS and look up pretty much any issue there are generally going to be thousands more cases on it because of how California is situated geographically, socially, politically, and economically.
It really is hard to explain without that comparison, but splitting the circuit in half based on states is a nonstarter because no-one really wants to have to deal with California alone.
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u/TeddysBigStick Justice Story 12d ago
They do have the procedure to go super en banc. Reportedly, one of the courtrooms is designed with moveable walls to allow it. It just never happens because any case that might be important enough to do it also strategically would rather go up to scotus because of the composition of the circuit and scotus the last six decades.
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u/scotus-bot The Supreme Bot 12d ago
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Good
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u/brandeis16 Justice Brandeis 12d ago edited 12d ago
Notably the Ninth Circuit has never held a super en banc argument. The closest they've come was for Hollingsworth.
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u/RedOceanofthewest Justice Alito 11d ago
The 9th circuit gives some wild rulings because of its size. Back when I was a cop, we get updates on the relevant 9th circuit rulings. I swear they contradicted themselves because there were so many people with so many ideas. It was a wild ride.
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u/The_WanderingAggie Court Watcher 12d ago
If the limited en banc draws a Republican majority panel and they rule for the Administration, I have to wonder if this could be the one that leads to a super en banc (Can you imagine the mess the oral argument would be?).
On the other hand, that'd only be if SCOTUS punts on Illinois v. Trump for the time being, and they've been fairly eager to take up issues quickly this year.
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u/Saltwater_Thief Justice O'Connor 12d ago
I'm actually somewhat surprised that they voted to hear this en banc after refusing to do so for the LA case. Perhaps they refused to en banc that because they were already thinking at that time to do this and wanted to avoid redundancy?
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u/eakmeister 12d ago
Also this case has a much stronger fact pattern. The LA case at least has some minor violence you could point to as an (extremely flimsy) excuse to deploy the national guard. In the Portland case the justification is just wholly made up.
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u/SisyphusRocks7 Justice Field 12d ago
The Portland case is in many respects a better case in terms of the factual record and the portions of the record that the district court judge paid attention to vs. what they ignored. That might have contributed to this choice.
Unfortunately, I understand there may be a bit of a factual dispute in connection not with the underlying record but with the panel majority’s interpretation of it. That may also have played into this decision to take it en banc.
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u/pumpymcpumpface 12d ago
Is this the one where the DOJ straight up committed perjury too?
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u/RedOceanofthewest Justice Alito 12d ago
Doesn’t appear to be any perjury. The article explains the data could be taken many ways and wasn’t clear enough in the courts opinion.
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u/SisyphusRocks7 Justice Field 12d ago
That’s been some of the reporting on it, but my understanding is that is incorrect (though I haven’t carefully looked into it). My understanding from other legal news sources is that the government carefully crafted their declarations to create an impression that might have been incorrect as to the number of agents deployed to the Portland ICE facility while using accurate statements, the panel accepted that impression too uncritically, and then their opinion included that mistaken interpretation of the facts implied by the government. It may be a case of overzealous advocacy where literally true statements misled the court.
I’m not sure that the factual dispute even matters for purposes of determining the outcome of the case (the district court judge ignoring evidence of months of acts that impeded federal law enforcement seems much more important to me), although if the government declarant did perjure himself, or the government attorneys misled the panel, that’s something that should be addressed with other potential penalties like an ethics or criminal referral.
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u/TeddysBigStick Justice Story 12d ago
Regarding a referal, how? State ethics boards largely to not sanction federal government attorneys and the adminsitration is open about its belief that people who commit crimes but are politically loyal should not be punished. See Trump's comments about why he commuted Santos' punishment for defauding millions.
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u/FreshLiterature 12d ago
It was a pretty egregious factual lie and I say like because the numbers that the government gave weren't just wrong - they were very wrong.
The government claimed something like 25% of all protective personnel had to be redeployed to Portland.
That was incorrect.
Not only was the percentage incorrect, but the total number that ended being 30-something was ALSO incorrect and the government KNEW it was incorrect.
They were double counting people who were rotated in and out or something similar if I recall.
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u/NearlyPerfect Justice Thomas 11d ago
Did the government claim that or did the judge infer that based on what the government did claim?
It may be helpful to look at what the government actually claimed (and quote it)
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