By Lynn Zinser
Ninth Circuit Court of Appeals Judge Alex Kozinski’s abrupt resignation on Monday means the pending decision on the Trump administration attempt to toss out the landmark youth climate case Juliana v. United States rests in the hands of the two other judges on the panel.
Kozinski was one of the three judges that conducted last week’s hearing in Juliana v. United States, in which the federal government argued for a writ of mandamus to keep the case from proceeding to trial. Kozinski, 67, announced his immediate retirement on Monday in response to more than a dozen allegations of sexual misconduct over the course of his 32-year tenure on the court.
The other two judges on the panel, Chief Judge Sidney Thomas and Judge Marsha Berzon, were openly skeptical of the government’s motion in last week’s hearing, questioning why this case merited such an extraordinary ruling before trial. The writ of mandamus is a rarely used measure in which a higher court overturns a lower court before the case has been concluded.
“We’d be absolutely flooded with appeals from people who think that their case should have been dismissed by the district court,” Judge Thomas said. “If we set the precedent on this kind of case, there’s no logical boundary to it.”
Kozinski, appointed to the court in 1985 by President Reagan, seemed much more open to the government’s appeal, vigorously questioning the plaintiffs’ attorney, Julia Olson, on the case’s merits.
If the panel had not already decided the matter before Kozinski’s resignation, Thomas and Berzon will decide the outcome. Had they agreed on a decision, however, their majority would have carried the decision regardless of Kozinski. If they decline the government motion, the case would proceed. It was scheduled for trial in February by U.S. District Court Judge Ann Aiken.
The case was filed on behalf of 21 young plaintiffs in 2015 by the legal advocacy group Our Children’s Trust, arguing that the federal government’s policies promote fossil fuel development to the detriment of their clients’ right to life, liberty and property. Aiken ruled the case should proceed to trial in November 2016 and denied the federal government appeal. That spurred the Trump administration to appeal to the Ninth Circuit for the writ of mandamus.
The Ninth Circuit is expected to rule in the coming weeks.
“Given how inappropriate mandamus is in the case at this juncture, we hope this new development will not delay a decision from the panel,” Our Children’s Trust said in a statement.
In the long term, Kozinski’s replacement will be a Trump administration nominee.