Ninth Circuit Judge Takes Fellow Jurists to Task for Making Shit Up
Ninth Circuit Judge Carlos Bea issued a protest yesterday (PDF) over his liberal colleagues’ practice of magicking up conclusions directly contradicted by law and prior Supreme Court precedent. He outlines a four-step process through which the other judges perverted the law.
Step One is to dig through Supreme Court decisions for dicta (that is, non-binding editorializing) that is arguably on point. Step Two is to mischaracterize that dicta as binding and creating a new constitutional test. Step Three is to “rephrase” the new rule so as to reach wider conduct. Step Four is to impose the new rule, while acting as if it was obvious all along.
Now you have it: Rodriguez announces a rule directly contrary to the Supreme Court’s holding in Mendoza, and in conflict with the First and Second Circuits to boot.
Judge Bea is a Bush 43 appointee.