The Ninth Circuit is the federal appellate court whose jurisdiction Bob Zadek describes as the eleven Western states. In the excerpts it appears less as an institution with its own doctrine than as a recurring waypoint: a court that litigants must sometimes persuade to step aside, sometimes appeal to, and sometimes overcome. Four episodes touch on it, spanning 2015 to 2023, and each treats it as a gatekeeper whose decisions determine what reaches the Supreme Court and what does not.
The most frequently reversed circuit
Introducing the Horne raisin case, Bob Zadek calls the Ninth Circuit the court of the eleven Western states and the most frequently reversed judicial district in the country, adding that its judges never get anything right, notwithstanding that its former Chief Judge, Judge Alex Kozinski, continually does get it right Baylen Linnekin on the Front lines of the Fight for Food Freedom (2015). The framing is Bob’s, offered as he sets up a Supreme Court decision that reversed the Ninth Circuit. Guest Baylen Linnekin does not repeat the characterization; his contribution is the account of the underlying case.
That case, Horne v. USDA, involved a California couple whom the USDA defines as raisin handlers. Linnekin describes a New Deal-era program, the Raisin Administrative Committee, under which handlers must turn over a significant portion of their crop for the privilege of doing business. Bob supplies the mechanism: the committee manages the retail price of raisins, taking excess raisins off the market so the price remains high, disposing of them and sharing the profits with growers—government manipulation of price in cartel-like fashion. Linnekin agrees that is an accurate telling and notes similar programs for other fruits and vegetables and for spearmint oil.
The Hornes had roughly half of a crop worth hundreds of thousands of dollars ordered seized. They claimed an unconstitutional taking under the Fifth Amendment’s Takings Clause and sued. Linnekin describes an odd trajectory: from the Ninth Circuit to the Supreme Court, back to the Ninth Circuit, and up again. Bob recounts the first round—the government said the Hornes had to pay a fine of about three-quarters of a million dollars before contesting the taking, and the Supreme Court held the government cannot require paying the fine first as a condition of getting into court. Linnekin agrees, adding that requiring a fine to appear in court would raise other constitutional concerns. In the second round, the Supreme Court ruled that personal property such as raisins is protected by the Takings Clause in the same way as real property like a home. Linnekin calls this a reiteration of history and says the Raisin Administrative Committee is now in very shaky constitutional territory.
Fast-tracking past the circuit
In the Friedrichs litigation, the Ninth Circuit appears as a court that deliberately declined to decide. Terry Pell, describing the challenge of bringing a First Amendment case against compulsory union dues, says the normal path from filing to the Supreme Court takes five to seven years, but that this was an issue only the Supreme Court could decide A Teacher’s Brave Stand Against Her Union – Rebecca Friedrichs and Terry Pell (2017). He and his colleagues persuaded the District Court and the Ninth Circuit Court of Appeals to pass the case on as quickly as possible. They argued there was nothing for the lower courts to decide, because the Supreme Court had previously ruled that compulsory dues are constitutional—Bob identifies that case as Abood, from 1977, and Pell confirms it. Only the Supreme Court, Pell says, has authority to overrule its own precedents. Both the District Court and the Ninth Circuit agreed, effectively deciding the case against the plaintiffs so they could reach the Supreme Court promptly.
Pell later describes the oral argument before the Supreme Court in January: the bench was very hot, the justices knew the issue, and over the balance of the argument the unions were very much on defense, with at least five justices primed to press the union. He begins to describe the tough questions his side faced from the liberal justices, and the excerpt ends mid-sentence.
Brady in civil cases
Joel Engel’s account of the Sierra Pacific litigation gives the Ninth Circuit a different role: the court that refused to undo a settlement. After a 65,000-acre forest fire in Northern California, the government prosecuted Sierra Pacific Industries; Engel says the assistant US attorney warranted in a brief that pointing at anyone else would be an arson witch hunt, and the federal judge prohibited SPI from putting on the stand a young man about whom there were legitimate questions [[episodes/joel_engel_on__scorched_worth__a_true_story_of_des|Joel Engel on Scorched Worth: A True Story of Destruction, Deceit, and Government Corruption, 6/3 (2018)]]. That forced a settlement: about 22,500 acres plus $50 million, which the Feds valued at about $125 million and touted as the largest wildlands recovery in United States history.
Later, the father of the young man told defense attorney Bill Warren that Warren’s team had offered his son $2 million to admit starting the fire. Engel says the assistant US attorney kept this to herself, investigated cursorily, dismissed it, and never told Warren or the court—a material fact she was obliged to present. When the state of California brought a nearly identical suit, the superior court judge, named Nichols, in Plumas County, dismissed the entire thing as one of the most egregious miscarriages of justice he had ever seen and fined Cal Fire $32 million, which Engel calls the largest fine ever administered to a government entity in American history.
When Sierra Pacific used the state case as a springboard to try to get the federal settlement thrown out, the district court denied it and it went to the Ninth Circuit. Engel says the Ninth Circuit held it essentially irrelevant that the defense had not been told about the false bribe allegation, on the ground that a Brady violation—which he describes as Supreme Court case law from 1963 requiring prosecutors to disclose all exculpatory evidence—does not apply in civil cases. Engel says there is no reason for that. He describes the force of inertia keeping those already adjudged liable in place as like a Star Trek tractor beam, and says that is why it is important not to lose at any time. Bob begins a response with the word “Once,” and the excerpt ends.
Civil forfeiture on appeal
In the 2023 episode on civil asset forfeiture, Mike Greenberg describes a March 2021 raid in which the government seized clients’ property. The clients got their things back gradually, the last of them around October, and Greenberg recounts accompanying two clients to the FBI office in Los Angeles, where agents handed back grocery bags of precious metals and then offered to walk them to their car because of homeless people in the area—an offer Greenberg presents as oblivious to the fact that the government had just held the property for months Civil Asset Forfeiture Revisited (2023).
The litigation continued because, Greenberg says, the government kept records of documents and heirlooms and photographed debit and credit cards. He wants a court to declare that going into the boxes at all and lying to the magistrate judge violates the Fourth Amendment, and to order the records destroyed. The district court ruled that what the government did was close enough to an inventory search, found no Fourth Amendment violation, and Greenberg says the ruling was confounding. The Ninth Circuit is going to hear the case soon, with the opening brief due the following month. Bob characterizes the effort as using atrocious facts to build useful precedent at the circuit level to rein in policing for profit, and Greenberg agrees, saying every American’s constitutional rights are at stake when the government can use a search of one place as a pretext to search others.
Across episodes
The excerpts show no development in how the Ninth Circuit is treated. In 2015 it is the most frequently reversed circuit, reversed in Horne; in 2017 it is a court persuaded to pass a case along; in 2018 it is a court that declined to undo a settlement because Brady does not apply in civil cases; in 2023 it is the forum for an appeal not yet heard. The recurring note is procedural: what the Ninth Circuit does or declines to do determines what the Supreme Court can reach.
What the sources do not cover
The excerpts do not state the Ninth Circuit’s founding date, its size, its headquarters city, or the full list of states in its jurisdiction beyond Bob Zadek’s reference to the eleven Western states. They do not describe the court’s internal procedures, its judges beyond Judge Kozinski, or any opinion text. The Friedrichs oral-argument excerpt breaks off mid-sentence, and the Scorched Worth excerpt ends on Bob’s word “Once,” so neither the liberal justices’ questions nor Bob’s completed thought is available.