At center of recall fray, a maverick court

The federal appeals court at the center of California's recall election dispute is no stranger to judicial fireworks.

Last year, the San Francisco-based Ninth US Circuit Court of Appeals sparked a nationwide outcry when it struck down as unconstitutional the phrase "one nation, under God" in the Pledge of Allegiance.

On Monday, a three-judge panel of the Ninth Circuit touched off a similar storm among conservatives and Republicans in California when it postponed the state's Oct. 7 recall election because of concerns about punch-card ballots. The precedent for the ruling: the US Supreme Court's controversial decision in Bush v. Gore, a ruling the high court said should never be applied in any other case.

Legal experts familiar with the inner workings of the Ninth Circuit say the court's maverick - and, at times, defiant - posture illustrates the extent to which it has become a bastion of liberal judicial thought operating in the shadow of a conservative US Supreme Court.

And that, these analysts say, can be an explosive mix.

"The Ninth Circuit has a number of very strong-willed liberal judges. They are people who are willing to push the envelope when they see the appropriate case," says Michael Ramsey, a professor at the University of San Diego School of Law.

The Supreme Court has enormous power to set the nation's judicial agenda by virtue of its authority to overrule all other federal court decisions. But the highest court has no direct control over the outlook and philosophy of individual federal judges and federal appeals-court judges, who - like the justices themselves - are appointed for life.

Judges are bound to follow the legal precedents established by the Supreme Court, analysts say, but those precedents often leave considerable room for lower court judges to maneuver.

"It is not flouting direct Supreme Court admonitions so much as taking Supreme Court language and reasoning and running with it in directions that have some surface analytic plausibility, but which we all know five justices of the Supreme Court would never agree with," says Vikram Amar, a law professor at the University of California's Hastings College of Law in San Francisco. "The 'one nation, under God' case is an example of that," he says, "and this [California recall] case may be an example of that too."

In the "one nation, under God" case, the full appeals court reconsidered the initial ruling of a three-judge panel of the Ninth Circuit. To the surprise of many conservative analysts, the court upheld the earlier ruling. The Supreme Court is now considering whether to include that case in its upcoming term.

In the California recall case, at time of writing it was unclear whether a full, "en banc" panel of 11 judges from the Ninth Circuit would rehear the case. Should the Ninth Circuit take up the case and reverse the three-judge panel, analysts say it is highly unlikely the Supreme Court would become involved.

But if the Ninth Circuit follows the same path as in the "one nation, under God" case and upholds the recall decision, analysts say the chances are better that the justices will take up the case.

Critics say the differences between the courts are often due to politics. Of the 26 active judges on the Ninth Circuit, 17 were appointed by Democratic presidents, and nine by Republicans.

At the US Supreme Court, seven of the nine justices were appointed by Republican presidents. In addition, the two justices appointed by President Clinton, a Democrat, are considered more moderate than liberal.

While the Ninth Circuit has a reputation for being the most overruled appeals court in the country, legal analysts say the more important measure of performance is how often the court is overturned unanimously by the Supreme Court. In other words, how often the high court's more liberal justices reject the Ninth Circuit's reasoning.

"There is no shame in being reversed, but if a court starts getting unanimous reversals or summary reversals in very many cases, that ought to raise a red flag," says Mr. Ramsey.

Last term, the court unanimously reversed three Ninth Circuit cases and summarily reversed without opposition at least three others. A year earlier, eight were reversed unanimously.

Arthur Hellman, a law professor at the University of Pittsburgh, cites a Ninth Circuit case overturned in 2002. The case involved a federal law used by the Oakland Housing Authority to evict tenants whose relatives or associates had committed crimes on housing-authority property. The full Ninth Circuit blocked the evictions, ruling that Congress didn't intend for the law to lead to the eviction of "innocent" tenants who knew nothing about crimes committed by others.

The Supreme Court reached the opposite conclusion, saying Congress had directly spoken on the question at hand. "That tells you something about the gulf between those two courts," Mr. Hellman says. "Not one justice on the Supreme Court thought the Ninth Circuit was right."