Patterico's Pontifications

5/9/2020

Get This: RBG Smacks Down Ninth Circuit in Unanimous Decision

Filed under: General — JVW @ 6:30 am



[guest post by JVW]

When a United States Court of Appeals for the Ninth Circuit decision is so far off-base that Chief Justice Roberts dispatches Associate Justice Ruth Bader Ginsburg to give them a pretty stern rebuke [links in quote below appear in the original article]:

The Supreme Court is often divided on ideological lines on hot-button issues, and tends to write unanimously when dealing with procedural questions where a lower court just went off the rails. So, when the Court takes a unanimous stand in a case involving a controversial political issue and goes out of its way to dress down the lower-court judges, you know they really went overboard. That’s what happened this morning in an immigration case, United States v. Sineneng-Smith. Justice Ginsburg herself delivered the lecture to the Ninth Circuit to knock off the antics and stick to the cases before it.

The Sineneng-Smith case involved an immigration consultant who made $3.3 million from clients (mostly Philippine immigrants) by filing applications for lawful permanent residence when she knew they were not legally entitled to that status. There were two potential victims here: the immigrants, if they paid for something they were never going to receive, or the government, if it approved illegal applications. Sieneneng-Smith tried to make herself more sympathetic by arguing that she was only scamming the immigration system: She “argued that labor-certification applications were often approved despite expiration of the statutory dispensation, and that an approved application, when submitted as part of a petition for adjustment of status, would place her clients in line should Congress reactivate the dispensation.” Neither of these was an argument that her clients had any legal leg to stand on, just hope that they might get away with it.

Sineneng-Smith argued that she had a First Amendment right to file bogus applications, under the Petition and Free Speech Clauses. When her appeal reached the Ninth Circuit, however, it landed before notorious liberal activist judge Stephen Reinhardt (who died after the case was argued, and has since been the subject of other controversies), on a three-judge panel with two Clinton appointees, judges Marsha Berzon and Wallace Tashima. Instead of hearing the arguments Sineneng-Smith made against her conviction, the judges thought up their own argument — that the federal statute against “encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law” is itself overbroad and should be thrown out in its entirety.

The Ninth Circuit panel brought in three lawyers to make friend-of-the-court arguments against the whole statute, and — after Judge Reinhardt died and was replaced on the panel by an Obama appointee — ruled that it was unconstitutional because Congress cannot criminalize encouraging people to break the law unless the law involved is a criminal statute: “even if certain speech would constitute aiding and abetting when directed toward the commission of a crime, it would be constitutionally protected when aimed at inducing a civil violation of law . . . unauthorized presence in the country is a civil violation rather than a crime.” The Ninth Circuit said that this could chill protected speech such as “an attorney who tells her client that she should remain in the country while contesting removal” — an obviously different situation from knowingly advising abuse of the legal process. (Justice Thomas, in a concurring opinion today, suggested that the overbreadth doctrine relied on by the Ninth Circuit should itself be revisited another day “in an appropriate case,” precisely because it gets courts into the business of deciding hypothetical cases). Sineneng-Smith and some of the amicus briefs even asked the Ninth Circuit to rule that it was discriminatory to criminalize encouraging people to break the law, but not criminalize discouraging them from breaking the law. Only in immigration cases would this kind of thing get argued in court.

This was too far for even The Notorious RBG, hero of the wokedy-woke everywhere, who had some fairly pointed words of admonition for her judicial colleagues in the syllabus of the unanimous opinion she wrote [legal citations have been omitted]:

The Ninth Circuit panel’s drastic departure from the principle of party presentation constituted an abuse of discretion.

The Nation’s adversarial adjudication system follows the principle of party presentation. [Quoted from] Greenlaw v. United States: “In both civil and criminal cases, . . . we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.”

That principle forecloses the controlling role the Ninth Circuit took on in this case. No extraordinary circumstances justified the panel’s takeover of the appeal. Sineneng-Smith, represented by competent counsel, had raised a vagueness argument and First Amendment arguments homing in on her own conduct, not that of others. Electing not to address the party-presented controversy, the panel projected that [the applicable law] might cover a wide swath of protected speech, including abstract advocacy and legal advice. It did so even though Sineneng-Smith’s counsel had presented a contrary theory of the case in her briefs and before the District Court. A court is not hidebound by counsel’s precise arguments, but the Ninth Circuit’s radical transformation of this case goes well beyond the pale.

The idea that it was Justice Ginsburg chosen to deliver this message to the wayward leftists on the Ninth Circuit is significant. It’s hard not to sense that the Court’s leftist bloc of Justices Ginsburg, Breyer, Sotomayor, and Kagan might be getting a little bit antsy about the overindulgences of The Resistance and want to let them know that there is a practical limit to using questionable tactics of lawfare to thwart the agenda of the Trump Administration. Perhaps it is as simple as believing that Democrats are destined to recapture the White House and Senate this coming fall, and the Court’s collectivist coalition wants to preempt the ability of conservative federal courts to place roadblocks in front of the Democrats’ agenda. Either way, it was a welcome development this past Thursday when the Supreme Court put lower courts on notice that indulging in outcomes-based legal wrangling is henceforth going to come under strict scrutiny.

– JVW

20 Responses to “Get This: RBG Smacks Down Ninth Circuit in Unanimous Decision”

  1. It’s RBG, not RGB…

    Dave (1bb933)

  2. People forget how many unanimous SC decisions bench-slapped Obama and his minions. It was impressive.

    Ragspierre (d9bec9)

  3. “ Sineneng-Smith and some of the amicus briefs even asked the Ninth Circuit to rule that it was discriminatory to criminalize encouraging people to break the law, but not criminalize discouraging them from breaking the law.”
    _

    Dems can’t wait to get back to appointing judges…..
    _

    harkin (8f4a6f)

  4. Heh! All the sentiments in the Ninth Circus opinion are being echoed, vociferously, right now, by the comrades protesting the lockdown. Down to the right to peacefully assemble. I’m chuckling out loud. Chortling, too.

    nk (1d9030)

  5. Doubt The Resistance types will see this as a moment for introspection, and more as a reason to get a President and Senate elected who in a future will appoint judges like those in the Ninth Circuit to the Supreme Court, instead of those DINO squishes like RBG, Breyer, Sotomayor, and Kagan.

    John (686b55)

  6. Yes, you can hope that Ginsberg is suddenly putting aside some Left-wing position and going on principle, but its much more likely she and the other Leftists knew they were going to lose this 5-4, and decided to jump on the bandwagon so they could write the majority opinion and not Thomas. Go read his concurrence. Or just as likely, they don’t like the 9th Circuit thumbing their noses at the SCOTUS and this wasn’t an important enough Left-wing issue to them, to go along.

    If we had a decent functioning Congress that did its job, it would rein in the Judiciary and spare us these ridiculous 2-1 Appeals decisions affirming some crazed District Court Judge.

    rcocean (1a839e)

  7. Of course, if it was up to jonah goldberg, Bill Kristol, the Bulwark boys and the dispatch gang, we’d have a Ginsberg run SCOTUS Right now. God knows what nonsense they would’ve given us. GIven the Left wing bloc votes so far, they would’ve gutted the immigration laws making it impossible to deport ANY illegal alien and giving us defacto Open borders. And made the 2nd Amendment a dead letter, and had Obama judges running the redistricting process & mandating mail in ballots and no voter ID.

    rcocean (1a839e)

  8. RIP – Richard Wayne Penniman aka Little Richard
    _

    harkin (8f4a6f)

  9. …its much more likely she and the other Leftists knew they were going to lose this 5-4, and decided to jump on the bandwagon so they could write the majority opinion and not Thomas.

    Cite your authority for this.

    Ragspierre (d9bec9)

  10. Of course, if it was up to jonah goldberg, Bill Kristol, the Bulwark boys and the dispatch gang, we’d have a Ginsberg run SCOTUS Right now.

    Cite anything rational that supports this.

    Ragspierre (d9bec9)

  11. Of course, if it was up to jonah goldberg, Bill Kristol, the Bulwark boys and the dispatch gang, we’d have a Ginsberg run SCOTUS Right now. God knows what nonsense they would’ve given us. GIven the Left wing bloc votes so far, they would’ve gutted the immigration laws making it impossible to deport ANY illegal alien and giving us defacto Open borders. And made the 2nd Amendment a dead letter, and had Obama judges running the redistricting process & mandating mail in ballots and no voter ID.

    rcocean (1a839e) — 5/9/2020 @ 8:21 am

    This is a given. They didn’t mind being dissenters from the left as long as they were on the losing side and got invited to the right parties. But now, their status was threatened and they couldn’t stand that. They thought the public got uppity.

    NJRob (4d595c)

  12. About fifteen years ago there was this realtor down here whose best friend was arrested for DWI. So the realtor said, I’ll take care of it, walked into court and presented himself as his friend’s lawyer.

    That was really stupid, because it is illegal for someone, a non-licensed attorney, to represent anyone other than himself or herself in a court of law. When the judge found out that this realtor was not a licensed attorney–didn’t have a college or law degree, had not passed the bar–she really threw the book at him.

    As I recall, he was sentenced to two years in jail, fined $10,000, and the real estate commission revoked his license. Not very smart.

    Actually, though, you don’t need a college or law degree to become a licensed attorney in the state of Texas. All you have to do is pass the bar exam. Yep, anyone fresh out of high school can become a licensed attorney in Texas, but you do have to pass the bar exam.

    I could become a licensed attorney in just a few months. I figure it would take about six for me to learn the vernacular, study court procedure, rules of evidence, sit in the gallery for a couple of trials, watch, listen, learn how lawyers and judges conduct themselves, then take the bar exam. Just like that, I could be a licensed attorney. What is the bar exam to me? I passed the ACT, the SAT, the GRE, have two bachelor’s degrees and a master’s degree, a lifetime teaching certificate and a real estate license. I honestly believe I could pass the bar exam blind, like next week.

    I don’t know what kind of lawyer I would be, but I was a pretty good teacher and am a good realtor.

    What I would not do is take advantage of my clients’ immigration status to enrich myself, or falsify documents. That’s what this woman did, Sineneng-Smith, did. $3.3 million is a lot of money.

    I’m going to assume that she went to college and law school, passed the bar. But she took advantage of vulnerable immigrants, who did not get what they paid for, and that is inexcusable.

    She should be sentenced to jail, heavily fined, and have her license revoked. But I have no idea where this case is headed, now that the Supreme Court has struck down the 9nth Circuit’s ruling.

    If I were the judge though, I would throw the book at her.

    Gawain's Ghost (b25cd1)

  13. This is a given. They didn’t mind being dissenters from the left as long as they were on the losing side and got invited to the right parties.

    That an inane bushel of silly slander. The comment…naturally.

    Ragspierre (d9bec9)

  14. Ragspierre,

    you keep trying to provoke a response. Why is that? You do it to everyone in the most disrespectful way possible. Get some fresh air.

    NJRob (4d595c)

  15. That used to be true, GG, but I think you have to prove you have/will graduated from a law school now.

    The alternative in four states (California, Vermont, Virginia and Washington) is to do an apprenticeship with a lawyer followed by passing the bar exam. I know someone who did that in Texas in the 1940’s. He was a a superb lawyer. I don’t know her but it has been reported that Kim Kardashian West is also “reading the law” with lawyer guidance. She is meeting with her supervising lawyer(s) once a week for 4 years and plans to take the bar exam in 2022.

    DRJ (15874d)

  16. In some states, one might be able to attend law school without having completed college. However, law schools that allow that are probably rare, might be unaccredited, and could impact the ability to take the bar exam in some states.

    DRJ (15874d)

  17. That an inane bushel of silly slander.

    I think it’s closer to the mark to call it a stupid, unprovable hypothetical. Hardly a day passes when ocean & co. riff and sneer at disloyal conservatives. It’s really got ’em riled.

    Paul Montagu (b3f51b)

  18. “ I honestly believe I could pass the bar exam blind, like next week.”

    – Gawain’s Ghost

    If our hosts wanted to take up a collection to make this happen, I would contribute a substantial amount of money to that collection.

    Leviticus (69df94)

  19. Ragspierre, you keep trying to provoke a response. Why is that? You do it to everyone in the most disrespectful way possible.

    That’s several falsehoods, right there. I was responding to a recognized troll (my mistake). I not only DON’T do what you falsely accuse me of, I let a lot of crap here slide on by.

    I confess to not respecting liars at all. You can call it a flaw.

    How’s your big push to change the public health laws in NJ, BTW?

    Ragspierre (d9bec9)

  20. Some of our history’s finest attorneys were never inside a law school. A few of the worst lawyers I’ve ever seen were law-review types.

    Moreover, there are about a million ways to work as an attorney, and most law school grads never see the inside of a courtroom, very much by choice. I had a friend/adjunct professor in law school who was a former spook, and a trial attorney. He maintained you had to be nuts to want to practice trial advocacy, and I always felt there was some value in that observation. Just consider the base-line fact that we all are afraid of public speaking, and we all hate the idea of being rejected. Every time you appear in court…and especially try a case to a jury…you have to confront both.

    Ragspierre (d9bec9)


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