While many in the media are incorrectly calling the Ninth Circuit ruling as “unanimous,” it is technically what is known as Per Curiam (See screenshot at the bottom of the blog). Here is how it works.
The Federal 9th Circuit appeals court ruled against Trump today. It upheld the Washington Federal Court’s halt of Trump’s Executive Order that was labeled as the “Muslim Ban.” The order was issued as Per Curiam, which means “by the court” in Latin.
Is it a unanimous decision? No. A unanimous decision would be cited as unanimous. See pic below:
Usually, decisions of the courts would have all the names of the judges. Most of the times, some judges would agree and some would disagree. These would be specifically cited as Concurring and Dissenting judges.
A Per Curiam decision is used mostly to resolve simple matters and sometimes to hide the disagreements within the court. In this case, this case is very high profile and highly political. There were three judges, two appointed by Democrats (Carter and Obama) and one by a Republican (George W. Bush).
If the Bush judge had dissented and the ruling were 2-1, the entire country would be talking about the politicization of the court. To avoid the court becoming the topic, the decision was issued as “Per Curiam.” Note that even a 2-1 decision can be marked as Per Curiam.
Theoretically, judges should be above politics, but the fact is that there are liberal judges and conservative judges. Most of the times, they rule along the left-right spectrum of politics.
So, nice try, 9th Circuit. Everyone knows you are a liberal bastion. Now off to the U.S. Supreme Court. Trump can still be hopeful since the Ninth Circuit has a dubious distinction of having its decisions overturned very often – sometimes 80% or more.
Hopefully Jeff Sessions will find a better solicitor to argue since the guy who argued this case for the White House was pathetic.
Also, this decision might give the Republicans the rationale to split up the 9th circuit court into two. The court is too liberal and is too inefficient — it covers vast areas of the U.S. and has over 13,000 pending/backlog cases.
Screenshot of the decision showing “Per Curiam” (look at the last line)