The Ninth Circuit’s reputation as the most-reversed circuit has improved in the last decade, but days like today suggest that it still tends to buck Supreme Court precedent and is reluctant to correct errors en banc. Two unanimous reversals from the Supreme Court highlight that today.

The first is Garland v. Ming Dai, unanimously reversing a decision of the late Judge Stephen Reinhardt. Ming Dai earned a “dissental” from rehearing en banc from 10 active judges (Callahan, Bybee, Bea, M. Smith, Ikuta, Bennett, R. Nelson, Bade, Collins, and Lee) (joined by two senior judges, O'Scannlain and Trott), and Justice Neil Gorsuch repeatedly mentioned in his opinion that the Ninth Circuit’s decision was rendered over the dissenting views of at least 12 members of that court.

The second is United States v. Cooley, unanimously reversing a decision by Judge Marsha Berzon. A dissental by Judge Daniel Collins (joined by Bea, Bennett, and Bress) from rehearing en banc did, however, earn this particular meta-critique by Judge Berzon (joined by Hurwitz):

Even within the questionable genre of dissents from denial of rehearing en banc, see Martin v. City of Boise, 920 F.3d 584, 588 (9th Cir. 2019) (Berzon, J., concurring in denial of rehearing en banc), Judge Collins’s dissent to the denial of rehearing (“dissent”) is an outlier. It misrepresents the legal context of this case and wildly exaggerates the purported consequences of the panel opinion. . . .

This case involves an unusual factual scenario and a technical issue of Indian tribal authority. It certainly does not present a “question of exceptional importance” meriting en banc consideration. Fed. R. App. P. 35(a)(2). There is no conflict among the circuits regarding the question presented here, the opinion is not in conflict with a Supreme Court decision, and the practical implications are limited. . . .

But the Supreme Court’s decision to grant certiorari and then reverse suggests that it was “important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.”

Less than a month after the Cooley decision, the Los Angeles Times ran a story about the “strain” on the Ninth Circuit from new judges, particularly Judge Collins, and specifically on his dissental in Cooley:

Among those who have caused the most consternation is Judge Daniel P. Collins, a former federal prosecutor and partner of a prestigious law firm.

Some judges say that, in the early months of his tenure, Collins has appeared oblivious to court tradition. He has sent memos at all times of the night in violation of a court rule and objected to other judges’ rulings in language that some colleagues found combative, they said.

Collins also moved quickly to challenge rulings by his new colleagues, calling for review of five decisions by three-judge panels, and some of the calls came before Collins even had been assigned to his first panel, judges said.

Active judges vote on the calls behind the scenes, and the public becomes aware of a failed effort only when dissents are later filed by the judges who favored reconsideration. Judges said it was unprecedented for a new jurist to try to overturn so many decisions in such a short period of time. The court has so far rejected most of Collins’ calls.

“Collins has definitely bulldozed his way around here already in a short time,” one 9th Circuit judge said. “Either he doesn’t care or doesn’t realize that he has offended half the court already.”
. . .

The behind-the-scenes tensions over Collins spilled into public last month in an order rejecting a call, presumably made by Collins, to reconsider a panel’s decision. The panel had upheld a lower court’s ruling in favor of suppressing evidence from a tribal officer’s search of a vehicle on a public highway. The highway ran through tribal land.

Collins, dissenting from the court’s refusal to reconsider, was joined by three judges, two Trump appointees and one appointed by President George W. Bush.

Collins called the panel’s decision “deeply flawed,” “plagued” by legal error and marked by “confused analysis.”

Two Democratic appointees whose ruling Collins wanted reversed wrote that, even in the genre of such dissents, Collins’ was an “outlier.”

“It misrepresents the legal context of this case and wildly exaggerates the purported consequences of the panel opinion,” wrote Judge Marsha S. Berzon, a Clinton appointee, and Judge Andrew D. Hurwitz, an Obama appointee.

“This case involves an unusual factual scenario and a technical issue of Indian tribal authority,” they said. “It certainly does not present a ‘question of exceptional importance’ meriting en banc consideration.”

While the Ninth Circuit may have “so far rejected most of Collins’ calls,” the Supreme Court is a different matter.