How Appellate Lawyers Debate Gun Control and Abortion

Ninth Circuit correspondent Cory Webster joins us to discuss the court’s unusually busy en banc docket and its own species of “shadow docket.” We discuss how parties and judges are moving a few hot-button cases into procedural positions that may suggest what the merits decision will be—but without really touching the merits.

We discuss:

• Gun Rights: The 9th Circuit used a “comeback” procedure to send a case back to the same en banc panel that heard the case before the Supreme Court’s new Bruen test. The Procedural Trick: Judge Nelson says this “disenfranchises” other circuit judges who will be cut out of any say on how the old panel approaches the new Bruen test.
• Abortion Rights: After a 3-judge panel granted a stay motion, thus staying a district court injunction of Idaho’s abortion ban, the 9th Circuit voted to rehear the matter en banc, and thus re-implemented the district court’s injunction (meaning abortions may go forward despite the law). The Procedural Trick: Now that the en banc has taken up the motion, it will likely hold on to the case on the merits, too. That means expedited briefing and decision, and no possibility of further en banc review.
• En banc review granted where the 3-judge panel vacated a sentence because a prosecutor breached a plea a greement.
• En banc review denied, despite 11 judges (very close to a majority) who would have granted.

Cory Webster’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• Gun Rights: Duncan v. Bonta, No. 23-55805, at *6 (9th Cir. Oct. 10, 2023)
• Judge Van Dyke’s cheeky “concurrence” to his own majority decision last year in McDougall v. County of Ventura. (Ep. 26.)
• Suspended Judge Newman Discusses Her 'Proclivity of Dissenting' at ABA Event
• United States v. Idaho, No. 23-35440 (9th Cir. Sep. 28, 2023)
• United States v. State, No. 23-35440 (9th Cir. Oct. 10, 2023)
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.