The trend not only continues, it worsens. Do you still think the 9th Circuit’s performance is acceptable?
I’ve been in a lengthy trial away from FL in a distant state and 100% consumed with that endeavor. To answer your question: the 9th Cir has some brillant judges and have often been out front of the remainder of the judiciary and the Supremes. Is their performance acceptable? Of course it is, that’s why we have a Supreme Court that is not last because they’re correct, but correct because they’re last. The circuit courts are there to apply their best interpretation of either the statute or common law principle at issue. It’s a collective wisdom at work and the panel —or even the en banc court— is bound to apply the precedents from the 9th and the Supreme, however wrong or erroneous they may be. I do not agree that courts, even the newly constituted Supreme Court, engages in a result oriented approach to the cases they consider. There’s no doubt that the 9th, just as the new Supreme Court, is comprised of jurists whose view of the law follows a more-or-less consistent interpretive methodology. But I will never believe that any appellate judge approaches a case and record with a predisposition; not even the equally different judges of the 5th circuit who are just as predicable at the end of the spectrum opposite from the 9th. None of them are corrupt or evil in their orientation that arises from their background and experiences in the practice or on an inferior court when dealing with the broad array of cases and legal doctrines that come before the courts. The same is true of the Supreme court at any time in its history. A study of the Supreme in several subject, the antitrust statue comes to mind, illustrates precisely what I said here. The same is true with respect to labor law, consumers and the entire cross-section of legal disciplines.