Judge Sandra Ikuta of the 9th U.S. Circuit Court of Appeals appears to have the ear of conservative U.S. Supreme Court justices, who have recently reversed three opinions on which she dissented.

Judge Sandra S. Ikuta has the attention of the U.S. Supreme Court this year.

In a term with an unusually low number of certiorari grants, the justices agreed to review 13 cases from the 9th U.S. Circuit Court of Appeals.

Three of those drew dissents from Ikuta and have all been reversed.

Ikuta did not hold back in her dissents. When the 9th Circuit denied qualified immunity to an Arizona police officer who responded to a 911 call and shot a woman hitting a tree with a knife, Ikuta took umbrage.

“The panel opinion that we let stand today directly contravenes the Supreme Court’s repeated directive not to frame clearly established law in excessive force cases at too high a level of generality,” she wrote in a dissent from the court’s decision not to rehear the case en banc.

In April, the Supreme Court summarily reversed the 9th Circuit’s ruling in a per curiam opinion. Kisela v. Hughes, 584 U. S. ____ (2018).

“The panel’s reliance on Harris ‘does not pass the straight-face test,’” the seven-justice majority said, quoting Ikuta’s dissent. (The Harris decision in question concerned an FBI sniper’s decision to shoot a suspect in the back during the Ruby Ridge standoff; Ikuta had sharply criticized the panel decision for making a comparison to that case.)

Ikuta’s concerns were addressed when the authoring justice noted, “This court has ‘repeatedly told courts — and the Ninth Circuit in particular — not to define clearly established law at a high level of generality.’”

When the 9th Circuit, sitting en banc, ruled the use of full restraints on four criminal defendants during pretrial proceedings was unconstitutional, Ikuta cried foul, noting the practice had been abandoned and the defendants’ cases were moot.

She objected to the majority’s imprimatur of the “functional class action” in the criminal context, chastising former Judge Alex Kozinski, for whom she once clerked, for his majority opinion.

“[T]he majority ignores Article III’s limitations on federal judicial power, conjures up an unsupported and unprecedented exception to mootness, chastises district judges for following our case law, brushes aside inconvenient Supreme Court reasoning, creates an unjustifiable circuit split, and discovers a one-size-fits-all courtroom security policy in the Constitution,” Ikuta wrote.

In May, the justices unanimously reversed the 9th Circuit’s decision, declaring the case moot, and taking no position on the constitutionality of the shackles. United States v. Sanchez-Gomez, 584 U. S. ____ (2018).

And when the 9th Circuit ruled federal labor laws trumped arbitration contracts requiring employees to waive their rights to file class actions, Ikuta put pen to paper and disagreed. Morris v. Ernst & Young, No. 13-16599 (9th Cir. 2016).

“This decision is breathtaking in its scope and in its error; it is directly contrary to Supreme Court precedent and joins the wrong side of a circuit split,” she wrote in a panel dissent.

Two weeks ago, the Supreme Court reversed the decision in a 5-4 vote with a particularly acrimonious dissent from Justice Ruth Bader Ginsburg. Epic Systems Corp. v. Lewis, 584 U. S. ____ (2018).

Justice Neil M. Gorsuch, who authored the five-justice majority opinion, had three cases from which to choose.

In granting certiorari, the court agreed to review cases addressing the same issue from the 7th and 5th circuits as well.

Gorsuch chose the 9th Circuit’s fact pattern to lay out the case and pointed to Ikuta’s dissent.

“Definitely Judge Ikuta is riding high this term,” said Arthur Hellman, a professor at University of Pittsburgh School of Law who watches the 9th Circuit closely.

The arbitration dispute at the heart of the three Epic Systems cases seemed bound for Supreme Court review, regardless of the specifics of Ikuta’s writing, legal experts noted.

“They would have gotten to the Supreme Court, especially given the 5th Circuit’s long-standing position against the 7th and 9th circuits, which weighed in later, without her dissent,” Daniel R. Ortiz, a professor at the University of Virginia School of Law, said in an email Ortiz argued on behalf of the employees in the Epic Systems case before the Supreme Court.

Rex S. Heinke, a partner at Akin Gump Strauss Hauer & Feld LLP who argued the employer’s side of the case before the circuit, echoed Ortiz’s sentiments but acknowledged Ikuta’s role in signaling the issues presented in the case to the high court.

“She has emerged as a judge whose dissents over all are being looked at by the Supreme Court, influencing both cases it takes and how it resolves its cases,” he said.

Regardless, at the circuit level, Ikuta appears to be emerging as a leading conservative thinker on a court that has lost many of its most outspoken jurists on both sides of the ideological spectrum.

“This isn’t your dad and mom’s 9th Circuit,” said Benjamin G. Shatz, a partner at Manatt, Phelps & Phillips LLP who practices regularly in the 9th Circuit.

Iconic liberal fixtures on the circuit bench like Harry Pregerson and Stephen Reinhardt have died in recent months, Shatz noted, while former Judge Alex Kozinski’s retirement amid sexual harassment complaints and Judge Diarmuid O’Scannlain’s decision to take senior status in 2016 significantly dimmed the voice of the court’s conservative block.

“The older voices are dwindling and the younger ones are arriving,” Shatz said.

O’Scannlain, a Ronald Reagan appointee, was long considered the preeminent author of paeans to judicial conservatism on the liberal circuit court. He was frequently cited as a writer whose dissents caught the eye of conservative Supreme Court justices.

“With O’Scannlain taking senior status, she does seem to have emerged as the leading conservative voice flagging cases and decisions that the Supreme Court is likely to view as wrong,” Hellman said of Ikuta.

Ikuta, a George W. Bush appointee, has developed a reliable textualist voice since she joined the bench 12 years ago. The conservative bar is decidedly happy with her presence on the court.

“You compare her to Kozinski, who sucked all the oxygen out of the room for other judges to shine, and I think Ikuta came in and kind of went about her job in an efficient way,” said David DeGroot, a former president of the conservative San Francisco Federalist Society. “She is a wonderful writer and people are discovering that she’s got things to say and does so in an eloquent way.”

Reprinted with permission from Daily Journal.