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Judges in their own words

March 2017

“Our law punishes people for what they do, not who they are.”

—Chief Justice John R. Roberts, Jr., writing for the majority in Buck v. Davis, 2017 WL 685534, a case in which the U.S. Supreme Court reversed a death sentence because it was tainted by discredited testimony that appealed to the racial stereotype that African-American men are “violence prone.” The Chief Justice further noted that “when a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses.”

February 2017

“Executive power favors the party, or perhaps simply the person, who wields it. That power is the forbidden fruit of our politics, irresistible to those who possess it and reviled by those who don’t. Clear and stable structural rules are the bulwark against that power, which shifts with the sudden vagaries of our politics. In its haste to find a doctrine that can protect the policies of the present, our circuit should remember
the old warning: May all your dreams come true.”

—Ninth Circuit judge Alex Kozinski, dissenting from a denial of rehearing in Arizona DREAM Act Coalition v. Brewer, 2017 WL 461503 at *5) (9th Cir.). The case involved an Arizona policy that nullified certain aspects of the federal “DACA” program that protected certain undocumented persons and enabled them to obtain certain benefits, including the issuance of federal employment authorization documents. The Ninth Circuit affirmed the trial court injunction against the Arizona’s policy on the ground that it was preempted by federal law, including President Obama’s Executive Order. The 9th Circuit denied a rehearing en banc.

September 2016

“Now, I like good customer service as much as the next guy, but it is not a constitutional right.”

—Ninth Circuit Judge Barry G. Silverman, concurring in part, and dissenting in part, from the court’s decision to reverse and remand a case involving the question of whether Alameda County’s law restricting the location of a gun store violates the Second Amendment. The case is Teixeira v. County of Alameda, No. 12-17132 (opinion filed May 16, 2016).

March 2016

“I am going to start with an observation: even among flyspecks, this case is a nothing.”

—Ninth Circuit Judge Jay S. Bybee, concurring in the judgment but (in his words) “vigorously disagreeing with everything else” in Ozenne v. Chase Manhattan Bank (In re Ozenne), No. 11-60039, a case in which the court held that Bankruptcy Appellate Panels are not “courts” established by an Act of Congress for purposes of applying the All Writs Act (28 U.S.C. section 1651(a)). Bybee would have resolved the case on one of several alternate theories.

March 2016

"How best to balance th[e]se interests is a matter of critical importance to our society, and the need for an answer becomes more pressing daily, as the tide of technological advance flows ever farther past the boundaries of what seemed possible even a few decades ago. But that debate must happen today, and it must take place among legislators who are equipped to consider the technological and cultural realities of a world their predecessors could not begin to conceive. It would betray our constitutional heritage and our people's claim to democratic governance for a judge to pretend that our Founders already had that debate, and ended it, in 1789.”

Federal magistrate judge James Ornstein, rejecting the argument that the All Writs Act (28 USC § 1651) authorizes an order compelling Apple, Inc. to create software that allows the government to obtain encrypted information from a person’s cell phone. A full copy of Judge Ornstein’s opinion in In re Order Requiring Apple, Assist in the Execution of a Search Warrant, No. 15-mc-1902 (E.D.N.Y Feb. 29, 2016) can be viewed here.

January 2016

“We are reminded of the song lyric from a half-century ago: ‘You don’t miss your water/Till your well runs dry.’ (William Bell, “You Don't Miss Your Water” (Universal Music Pub. Group 1961).)”

—Presiding Justice Conrad Rushing, writing for the California Court of Appeal, Sixth Appellate District, in Great Oaks Water Co. v. Santa Clara Valley Water Dist., 242 Cal. App. 4th 1187 (2015). The court of appeal reversed a trial court ruling that had awarded a refund of extraction fees to a water retailer and remanded the case for a new trial.

November 2015

“At present, the court is not saying that Braham can never, ever, ever get his case back in court. But, for now, we have got problems, and the court is not sure Braham can solve them. As currently drafted, the complaint has a blank space— one that requires Braham to do more than write his name. And, upon consideration of the court’s explanation...Braham may discover that mere pleading BandAids will not fix the bullet holes in his case. At least for the moment, defendants have shaken off this lawsuit.”

U.S. Magistrate Judge Gail J. Standish incorporating Taylor Swift song lyrics in a recommendation that a claim against the pop singer be dismissed (and that the plaintiff’s related request to proceed in forma pauperis be denied). The recommendation was accepted by District Judge Michael W. Fitzgerald. The case is Braham v. Sony/ATV Music Publishing, No. 15-CV-8422 (C.D. Cal).

November 2015

"Holy copyright law, Batman!"

Ninth Circuit Judge Sandra S. Ikuta, introducing the panel’s opinion in DC Comics v. Towle, 802 F.3d 1012 (9th Cir. 2015), holding that federal copyright protection applies to the superhero’s famous ride, the Batmobile.

October 2015

“When a corporation and its counsel refuse to produce directly relevant information an opposing party is entitled to receive, they have abandoned these basic principles [of
litigation] in favor of their own interests. The little voice in every attorney’s conscience that murmurs turn over all material information was ignored.”

—Judge Roslyn O. Silver of U.S. District Court in Arizona, ordering $2.7 million in sanctions, as quoted by Ninth U.S. Circuit Court of Appeals Judge Milan D. Smith Jr. in Haeger v. The Goodyear Tire & Rubber Co. (793 F.3d 1122, 1126 n. 1 (9th Cir. 2015)). Smith upheld the order, which also requires Goodyear to file a copy of it in all subsequent litigation involving one of its lines of tires.

September 2015

“There ought to be a law against shining a laser pointer at an aircraft. In fact, there is, and it’s … designed for knuckleheads like him.”

—Ninth Circuit Judge Barry G. Silverman, explaining that the defendant violated a federal statute (18 U.S.C. § 39A) that makes it illegal to knowingly aim the beam of a laser pointer at an aircraft. (See United States v. Rodriguez, 790 F.3d 951 (9th Cir. 2015).)

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