DAHLIA LITHWICK wonders if the Ninth Circuit is trying to commit judicial suicide:

There must be some unwritten opinion-writing law for 9th Circuit judges that holds:

Where at all possible, decide close cases for the defendant, particularly if he is indisputably guilty. Take the most extreme possible position you can, then craft a holding that reaches far beyond the facts of this case. Under no circumstances shall you cite controlling authority from the Supreme Court, or contradictory cases from your own or other circuits. Strive to write the opinion as though you are God and you invented The Law yesterday.

I’m in the odd position of having witnessed two oral arguments in two consecutive weeks at which the party who prevailed in the 9th Circuit is unable to defend its reasoning. Increasingly, it feels as if there are always three parties at oral argument—both parties to the dispute and the 9th Circuit, lingering there, incomprehensible to all.

The Ninth Circuit does seem to have broken free of its moorings. I don’t always disagree with the result, but they seem to be going out of their way to provoke, which strikes me as a bad idea. How long before the Ninth Circuit is split?