As he has written and spoken about so often, Judge O’Scannlain thinks that’s wrong: “The Constitution…is a brilliant assignment of responsibilities. But like anything, if one or the other branches gets too far out of its own sphere, that is deleterious….” He believes that federal judges, who can be removed only through the arduous process of impeachment, should not imagine they have a “roaming assignment to go out and make policy for the good of the world.” In that respect, Judge O’Scannlain places himself jurisprudentially in line with former Chief Justice William Rehnquist and Associate Justices Felix Frankfurter (his “idol” in law school), John Marshall Harlan, and Antonin Scalia.
Life on the Court
Judge O’Scannlain says it felt like “going into the monastery” when he joined the Ninth Circuit in fall 1986, but he was impressed by the collegial atmosphere. He remembers being “literally embraced” by Chief Judge James Browning, and he was grateful that so many of his new colleagues traveled from out of state to attend his investiture (which his fellow Oregonian, Judge Otto Skopil, organized).
Although the court retains a friendly atmosphere, the work of the Ninth Circuit has changed dramatically over the decades since. When Judge O’Scannlain started, active Ninth Circuit judges heard about 180 cases a year—now it’s more than 500. The massive increase in workload would not be possible without law clerks, he says, and even with their help (and that of the court’s host of staff attorneys) the rate of growth is not sustainable.
As a result, Judge O’Scannlain has long urged Congress to ameliorate the growth of the court’s caseload by adding judgeships and carving out a new Twelfth Circuit. He has repeatedly testified in Congress in favor of such legislation, but most of his colleagues oppose splitting up the court. The proposal has never gotten much traction in the Senate, but Judge O’Scannlain expects “it’s only a matter of time” before it must.
The outsized caseload represents only part of Judge O’Scannlain’s work. He has served on and chaired numerous committees and boards relating to the judicial administration, education, and the mission of the courts over the years. He has also made a point of welcoming scores of visiting law students and dignitaries to his chambers, relishing opportunities to advance civic education and to showcase the Pioneer Courthouse, the oldest operating federal courthouse in the West. (With his Portland-based colleagues, Judge O’Scannlain championed and then oversaw the courthouse’s 2003-05 modernization and seismic retrofitting). And he has been among the more active writers in the process of determining which cases the court should rehear en banc. As noted, his dissents from denials of rehearing in this context are among the better predictors of whether the Supreme Court itself will take up the case.