The Ninth Circuit Court of Appeals appears in The Bob Zadek Show as an institution encountered in the course of constitutional litigation rather than as a subject examined on its own terms. In the one episode that discusses it, the court functions as an intermediate stop on the way to the Supreme Court, and its significance lies in how it handled a case that the litigants themselves did not want it to decide on the merits.
The Friedrichs litigation
In the episode featuring Rebecca Friedrichs and Terry Pell, Bob Zadek asked Pell to describe the challenges his law firm faced in bringing a First Amendment case against compulsory union dues. Pell described two obstacles. The first was finding clients willing to participate in a high-profile lawsuit that might reach the Supreme Court. He said that he and his colleagues were surprised to discover that many teachers in California were looking for just such a lawsuit, and that within several months they had 10 to 15 individuals interested and willing to serve as clients. The second challenge was getting the case filed and up to the Supreme Court, a process that Pell said normally takes five to seven years from filing. A Teacher’s Brave Stand Against Her Union – Rebecca Friedrichs and Terry Pell (2017)
Pell explained that in his view the issue could only be decided by the Supreme Court. He and his colleagues therefore persuaded the District Court and the Ninth Circuit Court of Appeals to pass the case on as quickly as possible so that the rights of their clients could be adjudicated by the Supreme Court without delay. The argument they made to both courts was that there was nothing for the lower courts to decide, because the Supreme Court had previously ruled that compulsory dues are constitutional. Bob Zadek identified that precedent as the Abood case, which he placed in 1977, and Pell confirmed that identification. A Teacher’s Brave Stand Against Her Union – Rebecca Friedrichs and Terry Pell (2017)
Pell described the strategy as a deliberate request that the lower courts rule against his clients. He said the litigants told the courts that the case had to reach the Supreme Court because only the Supreme Court has the authority to overrule its own past precedents. Both the District Court and the Ninth Circuit agreed with that reasoning, according to Pell, and said the case was not for a lower court to decide. They effectively decided the case against the plaintiffs, which Pell said was what the plaintiffs had asked them to do, so that the case could reach the Supreme Court for a prompt hearing on the merits. Pell said that hearing had taken place the previous January. A Teacher’s Brave Stand Against Her Union – Rebecca Friedrichs and Terry Pell (2017)
The court’s role as gatekeeper
The account presents the Ninth Circuit as a court that declined to reach the substance of the constitutional question before it. According to Pell, the court accepted the argument that the controlling precedent left nothing for it to decide, and it agreed to move the case along rather than adjudicate the merits. The court’s action is described not as a defeat imposed on the litigants but as a step they solicited. In Pell’s telling, the plaintiffs wanted a loss below so that they could obtain review above, and the Ninth Circuit cooperated with that plan. A Teacher’s Brave Stand Against Her Union – Rebecca Friedrichs and Terry Pell (2017)
This makes the episode’s treatment of the Ninth Circuit unusual as an institutional portrait. The court is not described in terms of its judges, its jurisdiction, its docket, or its reputation. It is described only through what it did in one case: it agreed that the case was not for a lower court to decide, and it passed the case on. The sources do not state where the court sits, when it was created, how many judges serve on it, or what geographic area it covers. They state only its place in the sequence of a single lawsuit. A Teacher’s Brave Stand Against Her Union – Rebecca Friedrichs and Terry Pell (2017)
Across episodes
Only one episode in the excerpts touches the Ninth Circuit Court of Appeals, so the excerpts show no development in the show’s treatment of the court across time. The topic appears solely in the episode featuring Rebecca Friedrichs and Terry Pell, where the court is discussed as a stage in the Friedrichs litigation rather than as an institution examined in its own right. A Teacher’s Brave Stand Against Her Union – Rebecca Friedrichs and Terry Pell (2017)
What the sources do not cover
The excerpts do not describe the Ninth Circuit’s composition, location, history, or jurisdiction, and they do not report any decision the court reached on the merits of the Friedrichs case. They do not state the outcome of the Supreme Court hearing that Pell said took place in January, nor do they identify the amendment or amendments on which the case turned beyond Pell’s description of it as a First Amendment case. The sources also do not say whether the Ninth Circuit’s handling of the case was unusual or routine, or how the court has treated other constitutional challenges to compulsory union dues.