Trump Ringmasters the Ninth Circus

Making threats works to bend people to your will - even lefty judges.

Federal courts below the Supreme Court are divided into "Circuits" which cover different parts of the country, and they sometimes reflect the tendencies of their areas.  The United States Court of Appeals for the Ninth Circuit, covering the Pacific coastal states, is as famously liberal as California, Oregon, and Washington are.

Circuit Court decisions technically cover only their jurisdictions, but they are often cited by lower courts elsewhere, so their views tend to spread across the country.  Conservatives have complained about the Ninth Circuit's leftism for decades, and the Supreme Court often agrees: of Ninth Circuit cases that the Supreme Court takes on appeal, 80% are vacated or reversed.

Of course, the Supreme Court can accept only a tiny fraction of cases appealed to it, so the leftist views of the Ninth Circuit generally prevail, at least in their Pacific territory, and to the extent that their influence spreads.  Liberals who desire to engage in lawfare against conservatives tend to bring suits in California, confident that they'll probably win.

The liberal majority on the court is so strong, and has been for so many decades, that the entire media community and even your humble correspondents at Scragged were astounded by two recent rulings.

Willfully Bigoted Leftist Policing

In a shock move that directly harms major Democratic organizations like police unions, single-party local authorities, and leftist billionaires like George Soros, the Court unanimously supported a lawsuit against the San Jose police who stood by while Trump supporters were attacked.  For many years courts have ruled that police possess "qualified immunity" and cannot generally be held responsible for failing to prevent crime.  This makes sense since most crimes are never solved; if the police were sued every time they failed to catch the crook, they'd never catch anyone at all.

In this case, however, the court ruled that police were so lax in preventing violence and so clearly bigoted against the Constitutionally-protected political views of the people they refused to protect, that the lawsuit should proceed.

The San Francisco Chronicle explained the logic:

If the allegations are true, "the officers acted with deliberate indifference to a known and obvious danger and violated the Trump supporters' constitutional rights," said the Ninth U.S. Circuit Court of Appeals in San Francisco.

After the rally at the McEnery Convention Center, police directed those in attendance to leave from a single exit. There, according to the lawsuit, they were ordered to head out onto a street where hundreds of anti-Trump protesters were waiting, even though a safer route and other exits were available. ... one plaintiff said an officer told her that police had been instructed not to intervene[emphasis added]

In other words: the police intentionally forced a gather of unprepared, peaceable conservatives into confrontation with violent leftists, then declined to intervene in the ensuing fracas.

The lawyers who brought the case want to be paid, so they'll work hard to also show that the demonstrators were hired by wealthy leftist organizations.  This will allow them to be tagged for liability for their employees' lawless behavior while also hitting the city of San Jose for big bucks.

The details of the charges and counter-charges will be hashed out in court, and we look forward to learning the facts.  They sound pretty damning and potentially vastly expensive to major leftists.  It's truly stunning that the Ninth Circuit allowed the suit to proceed rather than quashing it and saving their friends a bundle.

Open Carry

That case merely involves money; if you're a leftist, you can always extract more of that from longsuffering taxpayers.  In an even more flabbergasting decision, the Ninth Circuit also ruled that the state of Hawaii must allow open carry of firearms!  After picking its collective jaw up off the floor, the Washington Times reported:

While courts previously have recognized the right to own firearms to protect the home, the decision by the three-judge panel of the U.S. Court of Appeals for the 9th Circuit extends that into the public sphere, calling it a "core Second Amendment right." ...

"For better or for worse, the Second Amendment does protect a right to carry a firearm in public for self-defense," the judge wrote.

Hawaii's gun laws are so restrictive that not one carry permit was issued in either 2016 or 2017; it is the only state not to issue any permits in either year.  While technically guns are not banned, the fact that permits are never issued means that, in effect, they are.  The Ninth Circuit ripped the legalistic cloak off this unconstitutional practice.

What's more, the Ninth Circuit drew a comparison that conservatives have been trying to make for years without getting much traction. Some years ago, Southern states tried legal maneuvers to restrict voting rights for African-Americans, supported by "unofficial" repressive groups like the KKK.  Many blacks were murdered and otherwise oppressed, but a handful defended themselves effectively using whatever firearms they owned.

The Ninth Circuit noted this history, and cited it as an example of exactly why Second Amendment firearms rights are essential to all citizens.  They may also remember that California was an "open carry" state until the Black Panthers started carrying guns on "cop-watching" patrols, and marched on the legislature similarly armed.  Instead of fairly discussing their constituents' grievances, the legislature banned open carry for all Californians.  Despite this plainly racist origin, California's gun laws have become more and more restrictive over time.


We weren't the only ones astounded by the 9th Circuit's sudden grasp at sanity.  American Thinker offered an explanation:

I have to wonder: given two sensible decisions of late (this is the other one, affirming a Second Amendment right to open carry), has the Ninth Circuit been affected by the need to wade through poop and dirty drug needles getting to its courthouse in San Francisco and decided that leftist madness has gone too far?

That's possible - wading through poop to get to work can't be all that pleasant - but surely the justices rarely do that.  No doubt they have chauffeured limousines and a private, guarded parking garage underneath their courthouse, and a lavish mansion to live in far from the street rabble.

Instead, we think that the 9th Circuit is seeing the same light that Justice Owen Roberts saw when he voted with President Roosevelt against the Constitution in 1937, in "the switch in time that saved nine."

Franklin Roosevelt was elected President in the depths of the Great Depression with, as he saw it, a mandate to do whatever needed to be done to get the economy moving again.  His "whatever" amounted to total government control of the economy, regulating wages, prices, and production levels of everything.

Today, we've got used to an economy that's partially if not barely free, but back then Americans had been used to doing business however they saw fit and didn't take kindly to bureaucrats telling them how their private business dealings had to be conducted.  A flurry of lawsuits resulted, and in due time, the Supreme Court rightly shot down most of Roosevelt's New Deal as unconstitutional.

After being re-elected, though, FDR felt that his arguments had been ratified by the American people and that the Supreme Court had no right to tell them no.  Backed by a fully-Democratic Congress, he announced a law to "pack the court" by increasing the number of justices from 9 to 15.  Of course, he'd appoint the new six, and of course, they'd vote his way.

Rather than see his own power diluted, Justice Roberts suddenly started viewing the New Deal with a strange new respect.  From then on, the court decided to misinterpret the "commerce clause" of the Constitution to give the federal government power over essentially any activity carried out in any state.  FDR's government interference in the economy sailed through judicial review, setting us on the road to today's tens of thousands of pages of Federal regulations.  That is why, for example, the Federal government is able to declare marijuana consumption illegal even though the Constitution makes no mention of the Federal government having any authority over either agriculture or substance abuse.

Why do we reference this bit of obscure historical trivia?  Politico reports:

Sen. Jeff Flake (R-Ariz.) held an unusual Senate hearing Thursday in Phoenix to air his plan to to break up the 9th U.S. Circuit Court of Appeals.

Flake has proposed a bill to split the court’s jurisdiction, which currently covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington and territorial districts in Guam and the Northern Mariana Islands.

If Flake’s bill passes, it will keep only California, Hawaii, Oregon and the two territorial districts in the 9th Circuit. The rest would form a new 12th Circuit.

Despite the air of impartiality they like to project, our courts have always been political to a greater or lesser degree.  As the fictional Mr. Dooley put it, "No matter whether the Constitution follows the flag or not, the Supreme Court follows the election returns."

Soon after Mr. Trump defeated "Crooked Hillary," conservatives started talking about splitting the Ninth Circuit by adding a Twelfth to cover Washington and Oregon while appointing many more (and conservative) justices to the new circuit and to the old.  This is according to law - the Constitution gives the Senate the right to determine what matters Federal courts can judge and how lower courts should be organized.

With Mr. Trump having called for a breakup of the Ninth Circuit and now a ranking Senator holding hearings on a bill to do just that, the threat is far more real than it's ever been before.  The Ninth Circuit was established as the largely-empty western territories became sparsely-populated states, so creating another circuit to handle the vastly increased population in those areas would even be following precedent, not that President Trump has always found that to be a particular hindrance.

Could it be that the Ninth Circuit has had its "Justice Roberts moment" and decided on a timely switch?

Will Offensicht is a staff writer for and an internationally published author by a different name.  Read other articles by Will Offensicht or other articles on Law.
Reader Comments

So when did the Supreme Court go back to 9?!

August 5, 2018 2:09 AM
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