It’s only May, and it’s been a great year for Sandra Ikuta already. Indeed, her homework is getting top marks from the teacher’s desk.
There’s probably only one sweeter feeling for lower court judges than getting affirmed by the Supreme Court, and that’s authoring a (rather spicy) dissent to a judgement later reversed. And a dissenting circuit court judge must feel really deserving of that extra glass of wine when one of the reversals comes as a per curiam.
The good reviews for Judge Ikuta started back in April, when the Supreme Court reversed the Ninth Circuit in Kisela v Hughes. In that case, a police officer shot a woman who was wielding a knife, refused to obey commands to drop it, and generally was engaging in what the Court termed ‘erratic behaviour’. The question was whether the police officer violated clearly established federal law. In cases such as these, the dynamic goes very much like this: lower courts read Supreme Court opinions far too generally – essentially seeing clear law which addresses the factual scenario in front of them. The Supreme Court then has to pronounce that these general precedents are not specific enough to govern a case, giving police the notice they need not to act in a certain way. And that’s precisely what happened here.
The Ninth Circuit held that the police officer violated Fourth Amendment principles. However, seven judges on the Court were clearly not amused with their colleagues on this case. Leading the charge, Sandra Ikuta wrote a dissent from denial on rehearing en banc – which, as this developing breed of legal opinion goes – contained neon-bright language clearly designed to catch the mother Court’s attention. Ikuta writes in her opening salvo: ‘The panel opinion that we let stand today directly contravenes the Supreme Court’s repeated directive not to frame clearly established law in excessive force cases at too high a level of generality.’
She must have been delighted. In overruling the Ninth, the Supreme Court not only borrowed snippets from Ikuta’s dissent (including her snappy observation that her colleague’s reliance on a circuit case called Harris v Roderick ‘does not pass the straight-face test’) but its recurrent exasperation with the often eccentric Ninth Circuit comes out rather clearly. Faced with the Ninth Circuit’s citation of another of its own cases (Deorle v Rutherford) the Court sighs, saying that it ‘has already instructed the Court of Appeals not to read its decision in that case too broadly in deciding whether a new set of facts is governed by clearly established law’ (incidentally, this instruction came in City and County of San Francisco v Sheehan). The final steam-rolling comes when the Court faulted the Ninth Circuit for relying on a case which was decided after the incident in Kisela as evidence of clearly established law. Stating that other judges brought this ‘misleading citation’ to light, the Supreme Court once again signals to Sandra, citing her dissent again (Judge Ikuta explains this at footnote 2 of her dissent). I can hear more wine opening.
Another victory for Judge Ikuta came just this week, when the Supreme Court reversed the Ninth Circuit again in United States v Sanchez-Gomez, a case in which pre-trial detainees challenged a district-wide shackling policy. Even though their cases were over when it reached the Circuit court, the court (sitting en banc) held that the case was not moot. Disagreeing, Ikuta once again showcases a real talent for reprimanding her colleagues in an attention-grabbing opening paragraph that contains a recipe for reversal:
“[The en banc] majority ignores Article III’s limitations on federal judicial power, conjures up an unsupported and unprecedented exception to mootness, chastises district judges for following our case law, brushes aside inconvenient Supreme Court reasoning, creates an unjustifiable circuit split, and discovers a one-size-fits-all courtroom security policy in the Constitution”
Although the Supreme Court’s opinion in Sanchez-Gomez does not contain as many shout-outs to Ikuta as Kisela, it expressly refers to her dissent, and embraces the result she advocated below.
With such good school reports recently, my only question is: why isn’t Sandra Ikuta on Donald Trump’s list for potential Supreme Court nominees?