A nice line from Ninth Circuit Judge Lawrence VanDyke.
The broader backdrop comes from Judge VanDyke’s dissent in the denial of a rehearing en banc in Whitfield v. Mullin, a dissent joined by Judges Patrick Bumatay and Eric Tung; the question he grapples with is when a Ninth Circuit precedent ceases to bind future panels because it clashes with later Supreme Court precedent:
[T]his case once again exposes a deeper flaw within our circuit: Miller v. Gammie’s flawed insistence that our circuit’s own precedents take precedence over the Supreme Court’s newer directions unless our own rule is “clearly irreconcilable” with later Supreme Court guidance. 335 F.3d 889, 893 (9th Cir. 2003). This prevents three-judge panels of our court from applying more recent Supreme Court authority whenever it merely conflicts with our own. The consequence of this rule is both obvious and plainly wrong—we systematically elevate our incorrect precedents above the Supreme Court’s instructions about the correct resolution of numerous legal questions….
The reality is that our en banc court is frequently unable or unwilling to rectify matters that oppose Supreme Court precedent. Sometimes the obstacle is simply institutional inertia; the expense and difficulty of en banc review make corrections burdensome enough that erroneous precedent endures by default. We are a very busy court, and we can’t be expected to grant en banc review in every case presenting a legal issue where subsequent Supreme Court authority is inconsistent with, yet not “clearly irreconcilable” with, our own.
But that is not the sole defect of Miller’s rule. The effect of that inverted standard is particularly insidious (and likely intentional) when our precedents cover contested legal questions on which our circuit’s ideological leanings diverge from what the Supreme Court has recently told us. In those scenarios, it is highly unlikely that a majority of our court would vote to take a case en banc to discard the majority’s favored doctrinal approach, even after the Supreme Court has undermined its foundation. Judge Reinhardt famously proclaimed the Ninth Circuit’s motto: the Supreme Court can’t “catch ’em all.”
Miller‘s constraints ensure that the Supreme Court’s guidance will, for the most part, be confined in this circuit to only those occasions where the Court actually selects a particular case for review and issues a binding ruling in that case. And even in that rare instance, Miller ensures that whatever guidance the Supreme Court provides will have minimal spillover beyond the very narrow issue actually decided by the Court in that case. Everything else is not “clearly irreconcilable” (judges and lawyers alike are, after all, fairly adept at distinguishing), so three-judge panels of this court that would eagerly follow the Supreme Court’s recent guidance cannot. And those who wish to avoid the Supreme Court’s guidance can do so simply by declining to vote for en banc review.
The result is perverse. To correct our circuit’s many erroneous precedents and to ensure that litigants can benefit from intervening Supreme Court decisions, the Supreme Court would have to take case after case after case and reverse them all, slowly, over the course of decades, one by one, as it has done many times before.
The Supreme Court should not have to continue pruning the same poison ivy one small branch at a time. Numerous judges on our circuit would gladly do the right thing and apply the Supreme Court’s guidance in three-judge panel decisions whenever that guidance conflicts with our circuit’s earlier precedents. By overturning Miller in this or a future case, the Supreme Court would remove a perverse rule that entrenches erroneous precedent here, enabling three-judge panels to help trim back the overgrowth. Help us help you.
The Supreme Court should take up this case to correct our circuit’s flawed “serious questions” rule [the issue at stake in the underlying case, tied to the standard for granting preliminary injunctions]. But while they’re at it, why not also fix Miller‘s “clearly irreconcilable” standard? Addressing the former would eliminate one of many doctrines in our court that diverges from subsequent Supreme Court authority. And addressing the latter would do far more to align the Ninth Circuit with the Supreme Court—without the Court needing to exhaustively address every single error one by one.
