"The Supreme Court Should Not Have to Keep Trimming the Same Poison Ivy One Tiny Branch at a Time"

A nice line from Ninth Circuit Judge Lawrence VanDyke.

The broader context, from Judge VanDyke's opinion dissenting from denial of rehearing en banc in Whitfield v. Mullin, joined by Judges Patrick Bumatay and Eric Tung; the question Judge VanDyke is confronting is when a Ninth Circuit precedent stops being binding on future panels because it's inconsistent with intervening Supreme Court precedent:

[T]his case illustrates (yet again) a more fundamental problem within our circuit: Miller v. Gammie's improper demand that our own circuit's precedent be privileged over the Supreme Court's more recent instructions unless our precedent is "clearly irreconcilable" with what the Supreme Court has subsequently told us. 335 F.3d 889, 893 (9th Cir. 2003). This prevents three-judge panels of our court from applying more recent Supreme Court authority whenever it is merely inconsistent with our own. The effect of this rule is both obvious and obviously wrong—we systematically hold the Supreme Court's instructions about the right answer to any number of legal questions in lower regard than our own wrong precedents….

The reality is that our en banc court is often unable or unwilling to fix things at odds with Supreme Court precedent. Sometimes, the obstacle is simply institutional inertia; the costs of en banc review make correction burdensome enough that erroneous precedent persists by default. We are a very busy court, and we can't be expected to take every case en banc that presents a legal issue where subsequent Supreme Court authority is inconsistent with, but not "clearly irreconcilable" with, our own.

But that is not the only problem with Miller's rule. The effect of that inverted rule is especially insidious (and no doubt intentional) when our precedent involves one of the many contested legal questions where our circuit's ideological commitments are at odds with what the Supreme Court has recently told us. In those instances, it is very unlikely a majority of our court would ever vote to take a case en banc to abandon the majority's own preferred doctrinal approach, even after the Supreme Court has undermined its foundation. Judge Reinhardt famously announced the Ninth Circuit's motto: the Supreme Court can't "catch 'em all."

Miller's strictures ensure that the Supreme Court's guidance will, for the most part, be limited in this circuit to only those instances where the Court actually "catches" a specific case—that is, where it actually grants review and issues a binding opinion in that case. And even in that rare instance, Miller ensures that whatever guidance the Supreme Court provides will have little spillover effect beyond the very narrow issue actually decided by the Court in that case. Everything else is not "clearly irreconcilable" (judges and lawyers alike are, after all, pretty good at distinguishing), so three-judge panels of this court that would very much like to follow the Supreme Court's recent guidance can't. And those who would very much like to avoid the Supreme Court's guidance can do so simply by not voting to take a case en banc.

The consequence is perverse. To correct our circuit's many erroneous precedents and ensure litigants can benefit from intervening Supreme Court decisions, the Supreme Court will have to take case after case after case and reverse them all, slowly, over the course of decades, one by one by one, as it has done so many times before.

The Supreme Court should not have to keep trimming the same poison ivy one tiny branch at a time. There are many judges on our circuit who would be glad to do the right thing and apply the Supreme Court's guidance in three-judge panel decisions whenever that guidance is inconsistent with our circuit's own earlier precedents. By overturning Miller in this or some future case, the Supreme Court would remove a perverse rule that entrenches erroneous precedent in this circuit, enabling three-judge panels to help hack away at the overgrowth. Help us help you.

The Supreme Court should take up this case to correct our circuit's erroneous "serious questions" rule [that's the debate in the underlying case, which has to do with the standard for granting preliminary injunctions]. But while it's at it, why not also correct Miller's "clearly irreconcilable" standard? Addressing the former will eliminate one of many legal doctrines in our court that are inconsistent with subsequent Supreme Court authority. But also addressing the latter would do much more to conform the Ninth Circuit's law to the Supreme Court's—without the Supreme Court's needing to exhaustively address every single error seriatim.