« The Washington Redskins, the Lanham Act, and Article III | Main | Inazu, "Institutions in Context" »

Wednesday, September 24, 2014

The Reluctant Dissenter

On Monday, the Ninth Circuit issued a 6-5 en banc decision granting habeas relief for a Miranda violation. The case, Sessoms v. Grounds, has garnered attention in part because Chief Judge Kozinski wrote an opinion “regretfully dissenting” from the court’s judgment. Remarkably, Kozinski voted to deny habeas relief, even though he was “glad” that his own view of the law lost. Kozinski's reluctant dissent provides a window into how judges struggle with the sometimes conflicting demands of law and justice.

The basic fact in Sessoms is that police failed to cease an interrogation and procure an attorney for the defendant, despite the following exchange:

Sessoms: There wouldn’t be any possible way that I could have a—a lawyer present while we do this?

Det. Woods: Well, uh, what I’ll do is, um—

Sessoms: Yeah, that’s what my dad asked me to ask you guys . . . uh, give me a lawyer

The en banc majority concluded that this was an unambiguous request for an attorney and that the police therefore had a duty under Miranda to cease interrogation and get the defendant a lawyer.

Chief Judge Kozinski’s reluctant dissent is short, and you should read the whole thing. Three passages struck me as most remarkable:

First, Chief Judge Kozinski expressed his disapproval of governing law, while simultaneously acknowledging that it is binding on him:

I am dismayed that Sessoms’s fate—whether he will spend his remaining days in prison, half a century or more caged like an animal—turns on such esoterica. But that’s the standard we are bound to apply, even if we are convinced that the habeas petitioner’s constitutional rights were violated.

Second, Kozinski suggested that the “carefully crafted” state court opinion was written with a goal in mind: to preserve the wrongfully obtained conviction.

This is not a case where the state judges were confused about the law or overlooked key evidence . . . . No, the Court of Appeal’s opinion is carefully crafted to exploit every ambiguity in the timid utterances of a scared and lonely teenager.

Finally, Kozinski expressed satisfaction that his own view of current law lost, and he hoped that his view would also lose out in the Supreme Court.

While I agree with Judge Murguia’s analysis and join her dissent, it’s just as well that our view doesn’t command a majority. ... The state courts having failed Sessoms, I’m glad that a majority of our en banc court is able to conclude that the state courts were unreasonable. I hope their view prevails in the end.

It’s noteworthy that Kozinski described his colleagues as being “able to conclude” that the defendant should obtain relief. In that passage, Kozinski was explaining his dissenting vote as a product of incapacity rather than desire.

Kozinski has written reluctant opinions before. Last year, for instance, Kozinski wrote what could be called a "reluctant concurrence" in Williams v. Johnson, where he joined a unanimous decision denying habeas for a violation that "cuts at the heart of our adversary system." Kozinski said that he took "comfort in knowing that, if we are wrong, we can be summarily reversed." The Supreme Court obliged by issuing a GVR.

Kozinski’s reluctant opinions call to mind the remarks of another Ninth Circuit Judge, Harry Pregerson. During his confirmation hearings, Pregerson famously said: “If I had to follow my conscience or the law, I would follow my conscience.”

In Sessoms, did Kozinski offer a contrary answer, favoring law over conscience, or did his conscience ultimately dictate that the law had to be followed? Is it even possible that Kozinski wasn't truly put to the test in Sessoms, since he was able to vote the law as he saw it, while knowing that the court would still grant relief?

The above is cross-posted from Re's Judicata.

Posted by Richard M. Re on September 24, 2014 at 12:41 AM | Permalink


A follow-up, clarifying question would be useful.

Can't tell from just that IF he actually was ever put to the test. He very well might, especially as an appellate judge, never really had to make such a choice. And, a juror can be recused for a specific case, e.g., if s/he could not conscientiously apply the death penalty, while still being able to be a juror in any other case. So, IF that ever happens, he could simply recuse himself. Again, hard to tell when it would occur w/o more clarification.

Posted by: Joe | Sep 27, 2014 6:12:06 PM

Pregerson's comment is one that would result in a dismissal for cause if said by a juror during voir dire.
If a judge has said that he cannot guarantee he will follow the law, why is that not grounds for recusal across the board -- or at least for a motion to recuse, requiring the judge to explain exactly where his conscience is likely to conflict with the law, so that the parties (and Supreme Court) know whether they should be worried about such lawlessness in a particular case?

Posted by: Pregerson said what?? | Sep 26, 2014 5:10:04 PM


I read the opinion to be content with either a SCOTUS affirmance (rejecting Chief Judge Kozinski's view of the law) or a cert denial, but supportive of both. That is, I think the opinion disapproves of both the existing law (the "dismay[ing] ... esoterica") and the specific result. I agree, however, that it is not entirely clear that Kozinski wants SCOTUS (or perhaps Congress) to change the law. So maybe he really just wants a discretionary cert denial.

I suppose there is a further distinction to be made: SCOTUS could announce a *change* in the governing standard so as to make the en banc majority correct, or SCOTUS could *clarify* that the majority's view of the law has always been correct. Both of these results would presumably make Kozinski "glad" in that they would solve injustice in this case and in future, similar cases.

But the change/clarify distinction might matter in other ways. If SCOTUS persuasively clarified that the en banc majority was actually right on the law the whole time, the uplifting implication would be that the law was never so misguided as Kozinski believed when he wrote his "dismayed" opinion. But that would of course also mean that Kozinski himself had been wrong--which might in itself be cause for dismay!

Posted by: Richard | Sep 25, 2014 2:25:27 PM

That sounds like a good way to differentiate. Thanks.

For those who don't click the link, I found the Judge Pregerson article striking too, including this quote that was partially quoted above:

"My conscience is a product of the Ten Commandments, the Bill of Rights, the Boy Scout oath, and the Marine Corps Hymn," he said at the time. "If I had to follow my conscience or the law, I would follow my conscience."

Posted by: Joe | Sep 24, 2014 10:02:53 PM

What do you make of "I hope their view prevails in the end."? Is that another way of saying "I hope the Supreme Court says I'm wrong" or is he just saying "I hope we deny en banc review/cert. because the result, while legally erroneous, is morally good"?

Posted by: Will Baude | Sep 24, 2014 2:31:45 PM


I think that the two ideas are different. To my mind, "dubitante" conveys uncertainty regarding the legally correct judgment in the case, whereas "reluctantly" suggests that the legally correct result is regrettable on non-legal (perhaps moral) grounds.

There may be some overlap. For example, a judge might think that a precedent is binding but should be overturned. The judge might be both reluctant (because opposed to the precedent) and dubitante (because she suspects that the precedent is wrong).

Part of what I find so remarkable about Chief Judge Kozinski's opinion is that he didn't just say: X is the law binding on us, but I hope the Supreme Court changes it. He also said: X is the law binding on us, but I'm glad that my colleagues have mistakenly thought otherwise.

Posted by: Richard | Sep 24, 2014 2:19:00 PM

Is this some sort of twist on "dubitante"?

Posted by: Joe | Sep 24, 2014 11:09:34 AM

Post a comment