Three Ninth Circuit judges say their court has built a rule that keeps bad circuit precedent in place even after the Supreme Court points the other way, and they want the justices to end it.
Judge VanDyke, joined by Judges Patrick Bumatay and Eric Tung, dissented from the denial of rehearing en banc in Whitfield v. Mullin. The dissent attacks Miller v. Gammie, the 2003 Ninth Circuit decision that tells three-judge panels they must stick with circuit precedent unless it is “clearly irreconcilable” with later Supreme Court authority. VanDyke also asks the Supreme Court to take the case to fix the circuit’s “serious questions” standard for preliminary injunctions.
The fight is not abstract. It is about who controls the law in the nation’s largest federal circuit: recent Supreme Court instructions, or older Ninth Circuit doctrine that panels cannot set aside without clearing a high bar.
VanDyke frames Miller as an inverted hierarchy. Under that rule, Ninth Circuit precedent stays binding on later panels unless it collides so hard with new Supreme Court guidance that the two cannot be reconciled. Mere inconsistency is not enough.
He puts the charge in plain terms in the dissent:
“[T]his case illustrates (yet again) a more fundamental problem within our circuit: Miller v. Gammie 's improper demand that our own circuit's precedent be privileged over the Supreme Court's more recent instructions unless our precedent is "clearly irreconcilable" with what the Supreme Court has subsequently told us. 335 F.3d 889, 893 (9th Cir. 2003). This prevents three-judge panels of our court from applying more recent Supreme Court authority whenever it is merely inconsistent with our own. The effect of this rule is both obvious and obviously wrong, we systematically hold the Supreme Court's instructions about the right answer to any number of legal questions in lower regard than our own wrong precedents....”
That is the core institutional claim. Panels that want to follow newer Supreme Court guidance often cannot. Panels content to keep the old circuit rule can ride Miller and wait.
VanDyke does not pretend the full court regularly cleans up the mess. He says the en banc court is often unable or unwilling to fix precedents that clash with Supreme Court authority. Institutional inertia matters. En banc review is costly. The Ninth Circuit is busy. Erroneous precedent can survive by default when the conflict is real but not “clearly irreconcilable.”
He writes that the court cannot be expected to take every such case en banc. The result, in his account, is drift: Supreme Court signals arrive, circuit doctrine lags, and litigants live under the lag.
A Volokh Conspiracy presentation of the dissent centers that same warning about locked-in circuit error and the slow pace of Supreme Court cleanup.
The dissent goes further than workload. VanDyke says Miller’s effect is “especially insidious” when circuit precedent sits on contested ground where the Ninth Circuit’s ideological commitments diverge from what the Supreme Court has recently said. In those cases, he argues, a majority is unlikely to vote en banc to abandon its preferred approach even after the Supreme Court has undercut it.
He invokes a line long associated with Judge Reinhardt. VanDyke writes that Reinhardt “famously announced the Ninth Circuit's motto: the Supreme Court can't "catch 'em all."” Under Miller, the dissent says, that motto becomes operational doctrine.
VanDyke’s description of the practical bind is blunt:
“Miller 's strictures ensure that the Supreme Court's guidance will, for the most part, be limited in this circuit to only those instances where the Court actually "catches" a specific case, that is, where it actually grants review and issues a binding opinion in that case. And even in that rare instance, Miller ensures that whatever guidance the Supreme Court provides will have little spillover effect beyond the very narrow issue actually decided by the Court in that case. Everything else is not "clearly irreconcilable" (judges and lawyers alike are, after all, pretty good at distinguishing), so three-judge panels of this court that would very much like to follow the Supreme Court's recent guidance can't. And those who would very much like to avoid the Supreme Court's guidance can do so simply by not voting to take a case en banc.”
In that telling, distinguishing becomes a shield. Narrow Supreme Court wins stay narrow. Broader course corrections never reach three-judge panels unless the full court acts, and the full court often does not.
VanDyke calls the consequence perverse. If Miller stands, the Supreme Court must reverse Ninth Circuit errors the hard way: case after case, over years, one ruling at a time.
He presses the justices with the image that also supplies the dissent’s sharpest line:
“The Supreme Court should not have to keep trimming the same poison ivy one tiny branch at a time. There are many judges on our circuit who would be glad to do the right thing and apply the Supreme Court's guidance in three-judge panel decisions whenever that guidance is inconsistent with our circuit's own earlier precedents. By overturning Miller in this or some future case, the Supreme Court would remove a perverse rule that entrenches erroneous precedent in this circuit, enabling three-judge panels to help hack away at the overgrowth. Help us help you.”
The ask is structural. Overturn Miller so panels can apply intervening Supreme Court guidance when it is inconsistent with older circuit law, not only when the conflict is framed as total irreconcilability.
The vehicle is Whitfield v. Mullin. The dissent identifies the underlying dispute as the Ninth Circuit’s “serious questions” rule on the standard for granting preliminary injunctions. VanDyke says the Supreme Court should take the case to correct that rule.
He does not stop there. He urges the Court, while correcting the injunction standard, to correct Miller’s “clearly irreconcilable” test as well. Fixing the injunction doctrine would remove one inconsistent circuit rule. Fixing Miller, he argues, would do much more to align Ninth Circuit law with the Supreme Court without forcing the justices to chase every error in sequence.
His closing pitch on dual correction is direct:
“The Supreme Court should take up this case to correct our circuit's erroneous "serious questions" rule [that's the debate in the underlying case, which has to do with the standard for granting preliminary injunctions]. But while it's at it, why not also correct Miller 's "clearly irreconcilable" standard? Addressing the former will eliminate one of many legal doctrines in our court that are inconsistent with subsequent Supreme Court authority. But also addressing the latter would do much more to conform the Ninth Circuit's law to the Supreme Court's, without the Supreme Court's needing to exhaustively address every single error seriatim.”
Bumatay and Tung joined the dissent from the denial of rehearing en banc. The package does not include en banc vote counts, a full majority explanation of the denial, or a detailed statement of the panel’s precise “serious questions” holding beyond the dissent’s description.
What is clear from the dissent itself is the procedural posture. Rehearing en banc was denied in Whitfield v. Mullin. VanDyke dissented from that denial. Bumatay and Tung joined him. Miller v. Gammie, decided in 2003 and cited at 335 F.3d 889, 893, remains the cited circuit framework for when panels may depart from prior Ninth Circuit precedent in light of later Supreme Court authority. The dissent asks the Supreme Court to grant review and to overturn or correct both the “serious questions” injunction rule and Miller’s standard.
Authorities in the dissent have not, in the excerpts provided, listed every intervening Supreme Court decision they view as inconsistent with current Ninth Circuit precedent. Investigators of the docket will need the full opinion set and case history for caption details, filing dates stated on the face of the order, and the exact panel formulation of the injunction standard under challenge. The dissent’s public claim is broader than one statute or one factual dispute: it is a claim about hierarchical obedience inside the circuit.
Preliminary injunction standards decide whether government action or private conduct is frozen while a case proceeds. Rules that tilt that standard affect enforcement, regulation, and rights claims across the West. If the circuit’s test is out of step with the Supreme Court, parties face different law than the high court has signaled, for as long as Miller keeps panels from updating course.
VanDyke’s institutional point is sharper still. A circuit rule that privileges local precedent over newer Supreme Court instruction changes incentives. Judges who want alignment need en banc machinery or a Supreme Court grant. Judges who prefer the old path can decline en banc and keep distinguishing. The dissent says that pattern is “obviously wrong” because it ranks circuit error above high court guidance.
He also ties the problem to contested legal questions where, in his words, the circuit’s ideological commitments clash with recent Supreme Court direction. On that account, Miller is not a neutral housekeeping device. It is a retention mechanism.
The dissent’s preferred outcome is straightforward. The Supreme Court takes Whitfield. It corrects the “serious questions” preliminary-injunction rule. It also overturns Miller’s “clearly irreconcilable” gate. Three-judge panels then apply intervening Supreme Court guidance when that guidance is inconsistent with older circuit precedent, rather than waiting for full-court cleanup or another one-off reversal.
Until that happens, VanDyke says, the justices face a grind. They must keep catching individual cases. They must reverse them one by one. Spillover stays narrow. The overgrowth remains.
That is the law-and-order problem inside the judiciary itself: a subordinate court cannot be allowed to slow-walk the Supreme Court’s instructions behind a homemade standard of near-total conflict. When circuit process turns hierarchy upside down, constitutional order depends on the high court cutting the root, not just the next hanging vine.
