2014—President Jimmy Carter’s sorry judicial legacy lives on. Thirty-five years after his appointment by Carter, 90-year-old Ninth Circuit judge Harry Pregerson—still in regular (rather than senior) status—authors a panel opinion that preliminarily enjoins the state of Arizona from implementing a policy that prevents a class of illegal aliens from obtaining driver’s licenses. The liberal diehard holds (among other things) that the policy likely violates the Equal Protection Clause.
The state policy concerns those illegal aliens subject to the Obama administration’s non-enforcement policy known as Deferred Action for Childhood Arrivals (DACA). On the state’s argument that issuing driver’s licenses to DACA recipients might allow them to access governmental benefits to which they are not entitled, Pregerson recites testimony from state officials that (in his summary) “they had no basis whatsoever for believing that a driver’s license alone could be used to establish eligibility for such benefits.” But the relevant question isn’t whether a “driver’s license alone” would suffice, but rather whether a driver’s license might facilitate the process.
2020—The Fourth Circuit denies en banc rehearing of a rogue panel opinion in United States v. Gary. In a plea colloquy over a firearms-possession charge, the district court had failed to inform the defendant that the government would have to show at trial that he knew that he had previously been convicted of a felony at the time of his unlawful possession of the firearm. The panel ruled that this error was a “structural error” that was not amenable to harmless-error analysis.
Judge J. Harvie Wilkinson, joined by four of his colleagues, “concur[s] in the denial of rehearing en banc for one reason and one reason only”:
The panel’s holding is so incorrect and on an issue of such importance that I think the Supreme Court should consider it promptly. Any en banc proceedings would only be a detour. Many, many cases await the resolution of this question.
This court’s decision is far-reaching in its implications. It not only creates a circuit split of yawning proportions, but also an equally profound schism with the Supreme Court’s whole approach to error review and remediation.
The Supreme Court will grant review, and, in the consolidated ruling in Greer v. United States, every justice will reject the panel decision.