More Kerr on Carrington and mandate recall discretion

I am very pleased to see that Orin Kerr here has jumped back into the debate over the Ninth Circuit panel's Carrington ruling, and his long post sharpens the issue effectively while also spotlighting key aspects of the Supreme Court's discussion of mandate recalls in Calderon v. Thompson, 523 U.S. 538 (1998) (available here).   Orin views Carrington "like a replay of Thompson," but I think Carrington is very different for some reasons I have already discussed here.

To begin, Thompson says "courts of appeals are recognized to have an inherent power to recall their mandates, subject to review for an abuse of discretion."  Later on, after a review of the bizarre procedural history of the case, the ruling stresses that "Thompson's is not an ordinary case ... because he seeks relief from a criminal judgment entered in state court."  The ruling heavily stresses both federalism and habeas concerns in its discussion of finality, and yet still suggests that the Ninth Circuit's mandate recall might still have been proper to "avoid a miscarriage of justice" concerning the legality of the applicable sentence. 

Moreover, the dissent in Thompson (per Justice Souter garnering four votes) suggests the general principle of giving "a high degree of deference to the court exercising discretionary authority" to recall its mandate; it also suggests "that deference may be accorded to any reasonable selection of factors as relevant to the exercise of a court's discretion."  I do not think the majority in Thompson disputed these basic principles about reviewing a circuit's decision to recall its mandate, they just viewed the Ninth Circuit exercise of its discretion in Thompson as abusive.

Once again, I certainly can see why the full Ninth Circuit en banc might not agree with the Carrington panel's assessment of "extraordinary circumstances."  And I suspect the Justice Department will seek (and secure?) en banc review.   But, as Orin notes, the Justice Department apparently did not even appeal Carrington's precursor ruling from the Ninth Circuit.  Perhaps this is because DOJ properly feels it has more pressing tasks than trying every means to preserve a possibly unconstitutional sentence.

Related posts:

• What wrong with equitable Booker retroactivity in the Ninth Circuit?
• Distinguishing finality interests between convictions and sentences

UPDATE:  A helpful reader suggested I clarify the reality that the huge Ninth Circuit "doesn't sit en banc. Instead, they create 11-judge panels. Circuit Rule 35-3."

A CORRECTION: Another reader has reminded me that the Ninth Circuit this year changed to 15-judge panels for its en banc hearings.