Debra J. Saunders

In affirming the Richter conviction, Justice Kennedy wrote that the writ of habeas corpus stands as a safeguard against wrongful imprisonment. But the law is undermined "if there is judicial disregard for the sound and established principles that inform its proper issuance. That judicial disregard is inherent in" the Ninth's Richter decision.

Rushford found the unsigned "per-curiam" decision most damning because the Big Bench thought that the Ninth Circuit was so wrong that it "didn't even allow oral arguments."

Reinhardt and the majority had ordered the parole of Damon Cooke, who was convicted for attempted first-degree murder after he shot a friend in the head in 1991. The Ninth found that the parole board was wrong to consider the "cruel and callous" nature of the crime and wrong to ignore claims that Cooke was "an exemplary inmate."

The court also ordered the release of Elijah Clay, who was convicted of first-degree murder in 1978, because then-Gov. Gray Davis' refusal to heed a parole board recommendation for release was unreasonable.

Again, the Supremes ruled that federal judges have no dog in this fight: "There is no right under the federal Constitution to be conditionally released before the expiration of a valid sentence, and the states are under no duty to offer parole to prisoners."

(In a fourth reversal, this one written by Justice Sonya Sotomayor, the Supreme Court unanimously overturned a ruling involving a banking regulation.)

Conservative court watcher John Elwood believes that Justice Kennedy has taken on the task of scolding the Ninth because, "as a Ninth Circuit alumnus," the justice takes the court's battered reputation "a little bit more to heart."

And well he should. There are judges in the Ninth who see the bench as a portfolio to overturn any policy they don't like -- and jurisdiction be damned.

In 2009, a three-judge (including Reinhardt) Ninth Circuit panel ordered the release of 40,000 California inmates. Not only did the trio seem to think they had authority reserved for state lawmakers, but also, they issued the pronouncement that the state could release 1 in 4 inmates "without a significant adverse impact on public safety." As if saying so makes it so.

Elwood told me he tries to presume good faith and see the Ninth's decision as part of a simple "disagreement about how you apply the law." I try to do the same, but the Ninth has crossed the line so many times, there's no ink left in that well.

It's odd. When there is an opening on the Supreme Court, the Senate examines in detail whether nominees have the proper respect for past Supreme Court rulings. Sen. Dianne Feinstein is quite particular on that score. But in San Francisco, the Ninth Circuit doesn't seem to care what the U.S. Supreme Court writes. And it's OK.

Debra J. Saunders

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