The Ninth Circuit Conspiracy

Posted on | January 13, 2006

In terms of the judiciary, I think every conservative’s favorite target is the US 9th Circuit Court of Appeals. This particular court is probably the most outlandish and liberal in its rulings. One of their most infamous rulings was in the case of Elk Grove Unified School District v Newdow. This particular case made headlines because Michael Newdow, an staunch atheist filed a lawsuit challenging the constitutionality of the Pledge of Allegiance being recited with the phrase "under god". When the case came before the 9th Circuit, they judges ruled in favor of Newdow. This naturally set off a shit storm of criticism in Washington, DC with the judges who ruled in Newdow’s favor being called every sort of name imaginable and prompted a resolution from Congress supporting the Pledge in its current form.

I have come to hold a conspiracy theory of sorts about the 9th Circuit Court of Appeals. Rather than being rabid liberals hell-bent on reshaping American society as they see fit like some conservatives have painted them, I am of the opinion that they know exactly what they are doing and there is a specific reasoning behind it. Some pay may not know this, but when the one of the US court of Appeals circuits rules on something, that judgment is only binding within that circuit. So for example the Newdow verdict was only binding in states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington but nowhere else pending a ruling from the Supreme Court. A federal judge in Detroit, under the jurisdiction of the 6th Circuit Court of Appeals, would not be bound to a decision made by the 9th Circuit. This sets up a patch work of laws struck down in one place but not others.

But getting back to why the 9th Circuits rules they way it does sometimes, I believe they are actually writing these outlandish rulings intentionally because then is forces the Supreme Court to take the case and, hopefully, make a uniform ruling to avoid the aforementioned patchwork. In other words they rule the opposite way that SCOTUS would rule on the case in order to force the Supreme Court justices to actually hear it. Unfortunately sometimes SCOTUS is able to side-step the issue as they did in Newdow’s case when they dismissed it on a technicality (Newdow did not have custody of his daughter and thus the justices ruled he had no legal standing to file a lawsuit on her behalf and thus cancelled out the ruling by the Appeals Court . So now we get to go through it all again because Newdow filed a new lawsuit on behalf of other parents and children.

What prompted me to write this essay tonight was a story I read on one of the Technology News sites I read regularly, C|Net’s News.Com. On Thursday the 9th Circuit Court of Appeals dismissed a lawsuit brought by Yahoo seeking to clarify the jurisdiction a court order in France had over its US operations. Years ago Yahoo got in trouble over the sale of items related to Nazi Germany such as copies of Mein Kampf and The Protocols of the Elders of Zion because they fall under France’s ban on hate speech. While Yahoo’s French subsidiary already complied with French laws on this matter, Yahoo sued in the US to block enforcement of the French Court’s order against the US operations. The northern California district judge ruled in favor of Yahoo because it held that the First Amendment trumped the French Court.

The 9th Circuit however voted 6-5 to dismiss Yahoo’s claim and thus once again sets the stage for the Supreme Court to pick up the case and make a binding decision for the entire country because this is an issue that will come up again as globalization continues and laws such as those banning hate speech conflict with the US Constitution which defines itself as the "supreme law of the land".

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