Eminent Domain

David Lat of Above the Law and I share a love for judges duking it out in their opinions. After reading boring opinion after boring opinion day in and day out, it's nice to read something that's got a little emotion in it. A story linked in the National Appellate Journal discusses a recent bench battle on the Ninth Circuit Court of Appeals.

In the red corner, we have Judge Jay Bybee, a Bush appointee and newbie on the court. In the blue corner, we have Judge Stephen Reinhardt, a Carter appointee and law school classmate of Oliver Wendell Holmes. These two are fighting it out in this opinion over recanted testimony in a murder trial...

...the case of Roger Smith. Smith claimed that his guilty plea in the murder of Emmet Konzelman was no good since his supposed accomplice Jacob Edmonds -- who pleaded guilty to a lesser charge and testified against Smith -- later recanted his testimony.

Punch number one...

In his majority opinion, Reinhardt wrote that even though Smith had not exhausted his state claims, a rarely used exception should allow his case to move forward in federal court.

Sounds like usual Reinhardt reasoning. Bybee swings back...

Still, Bybee was unswayed -- extremely unswayed -- as evidenced by his dissent, which is one of the more entertaining pieces of writing to come out of the 9th U.S. Circuit Court of Appeals this year.

"Roger Smith and Jacob Edmonds needed money. Bad. For an Anthrax concert," he wrote. So the meth-addled pair "burglarized the Konzelmans' garage to obtain tools." Bybee then goes into a detailed recitation of the facts of the murder, and his argument of why the case shouldn't move forward.

They were all methed up and wanted to go to the Headbanger's Ball show. Sounds like quite a night. Surely the judges can agree on something here, right? The facts? Not according to Bybee...

"I disagree with nearly every word the majority has written, including 'and' and 'the.' My profound disagreement is not limited to the facts, but runs throughout the majority opinion."

He goes on to say that "the majority infers elaborate conclusions from the tiniest scraps of evidence, building narrow platforms that it leaps between in a complex game of judicial hopscotch. It is difficult enough to trace their path; I cannot join them in it."

But wait, there is some common ground...

In a footnote, though, Bybee does agree with the majority on one point -- about the given name of "Hooter" Bouse, who allegedly drove with Edmonds and Smith to the Konzelman home.

"There is some ambiguity in the record as to whether Mr. Bouse's first name is 'Arlen' or 'Marlin,'" he wrote. "The district and magistrate judges used the former, and the majority and the state court sentencing transcript use the latter. On this question, at least, I join the majority."

Well, it's something. If I had either of those names, I think I'd go by "Hooter" too. Some of the ATL comments think that this was Bybee's way to flag down the attention of the Supreme Court to reverse Reinhardt's opinion. I have my doubts about that. I think that the Supreme Court automatically gets all Reinhardt opinions sent to them for review no matter what. They all have a Ready for Reversal Reinhardt file in their chambers.

Bybee does seem to have gone to the Antonin Scalia School of Dissent Writing. I've wondered how the new guard of judges will differ from the old. I guess I'm not referring to Bybee's generation as much as I am referring to my generation. We are the ones who grew up on Scalia dissents. Some of us consider ourselves Bork disciples too. He's not the most tender writer either. Is that going to affect the tone and substance of legal opinions written by our generation? I think it's definitely possible.