Liberal 9th Circuit Judges Rebel over ‘Cert Petition’ Dissents in En Banc Denials

Judges on the 9th U.S. Circuit Court of Appeals are engaging in a war of pointed concurrences and sometimes snarky dissents to decisions denying en banc review.

Conservative judges on the San Francisco-based court have long used dissents to denials of en banc review to frame the issues and urge the U.S. Supreme Court to take the case, the Daily Journal explains. But University of Pittsburgh law professor Arthur Hellman told the publication that, in the last four months, liberals are increasingly fighting back with concurrences seeking to refute points by dissenters.

The concurring judges may have been emboldened by Judge Marsha Berzon, who complained in a 2006 concurrence that the dissents “sometimes read more like petitions for writ of certiorari than judicial opinions of any stripe.” She complained that Chief Judge Alex Kozinski had accused the majority of “all manner of judicial perfidy” in an environmental case, but he was either “flat wrong” or laboring under a misunderstanding.

Several observers have noted Kozinski's propensity for writing dissents to en banc review denials, characterizing them as "Kozinski cert petitions,” the Daily Journal says.

Kozinski’s dissent in the case prompting the protest by Berzon did lead to a Supreme Court reversal, the story says.

But the 9th Circuit dissents may be influencing Supreme Court justices in more ways than one.

Three Supreme Court justices filed dueling concurring and dissenting opinions on Monday when the U.S. Supreme Court denied certiorari in a case contending delayed executions violate the ban on cruel and unusual punishment.