Marsha S. Berzon
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Marsha Lee Berzon ( Siegel; born April 17, 1945) is a Senior
United States circuit judge In the United States, federal judges are judges who serve on courts established under Article Three of the U.S. Constitution. They include the chief justice and the associate justices of the U.S. Supreme Court, the circuit judges of the U.S. ...
of the
United States Court of Appeals for the Ninth Circuit The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts: * District ...
.


Education and legal training

Berzon graduated with a
Bachelor of Arts Bachelor of arts (BA or AB; from the Latin ', ', or ') is a bachelor's degree awarded for an undergraduate program in the arts, or, in some cases, other disciplines. A Bachelor of Arts degree course is generally completed in three or four year ...
degree from Radcliffe College of
Harvard University Harvard University is a private Ivy League research university in Cambridge, Massachusetts. Founded in 1636 as Harvard College and named for its first benefactor, the Puritan clergyman John Harvard, it is the oldest institution of high ...
in 1966 and received a Juris Doctor from
Boalt Hall School of Law The University of California, Berkeley, School of Law (commonly known as Berkeley Law or UC Berkeley School of Law) is the law school of the University of California, Berkeley, a public research university in Berkeley, California. It is one of 1 ...
at the
University of California, Berkeley The University of California, Berkeley (UC Berkeley, Berkeley, Cal, or California) is a public land-grant research university in Berkeley, California. Established in 1868 as the University of California, it is the state's first land-grant u ...
in 1973. While at law school, Berzon was a contributor to the ''
California Law Review ''California Law Review'' (also referred to as ''CLR'') is the journal of the University of California, Berkeley, School of Law. It was established in 1912. The application process consists of an anonymous write-on competition, with grades playing ...
''. She then clerked for Judge James R. Browning of the Ninth Circuit from 1973 to 1974. Berzon then clerked for Justice William J. Brennan Jr. of the
United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
. She was Brennan's first female law clerk.


Career

Berzon was in private practice in
Washington, D.C. ) , image_skyline = , image_caption = Clockwise from top left: the Washington Monument and Lincoln Memorial on the National Mall, United States Capitol, Logan Circle, Jefferson Memorial, White House, Adams Morgan, ...
from 1975 to 1977 and then moved to
San Francisco San Francisco (; Spanish for " Saint Francis"), officially the City and County of San Francisco, is the commercial, financial, and cultural center of Northern California. The city proper is the fourth most populous in California and 17th ...
,
California California is a state in the Western United States, located along the Pacific Coast. With nearly 39.2million residents across a total area of approximately , it is the most populous U.S. state and the 3rd largest by area. It is also the m ...
where she practiced from 1978 to 2000. Berzon had a unique Supreme Court litigation practice and litigated many of the landmark cases during that period. Berzon was also a lecturer at UC Berkeley in 1992 and a practitioner-in-residence at Cornell Law School in 1994.


Federal judicial service

On January 27, 1998, Berzon was nominated by
Bill Clinton William Jefferson Clinton ( né Blythe III; born August 19, 1946) is an American politician who served as the 42nd president of the United States from 1993 to 2001. He previously served as governor of Arkansas from 1979 to 1981 and agai ...
to the Ninth Circuit for the seat vacated when John T. Noonan assumed
senior status Senior status is a form of semi- retirement for United States federal judges. To qualify, a judge in the federal court system must be at least 65 years old, and the sum of the judge's age and years of service as a federal judge must be at leas ...
on December 27, 1996. Clinton renominated Berzon on January 26, 1999. Berzon was confirmed by the U.S. Senate by a 64–34 vote on March 9, 2000. She received her commission on March 16, 2000. On April 6, 2021, she announced her intent to assume senior status upon confirmation of a successor. She assumed senior status on January 23, 2022.


Notable cases


Pre-2015

On February 10, 2003, Berzon dissented from denial of en banc after a panel rejected a Washington State Patrol cadet's claim that he was forced to resign due to lack of religious accommodations. In the disability rights case ''Molski v. Evergreen Dynasty Corp.'' (9th Cir. 2008), Berzon warned that the majority's decision could be detrimental to the enforcement of civil rights laws. In a 2009 decision, Berzon wrote that while a San Francisco resolution condemning the Vatican was in line with current Establishment Clause jurisprudence, she was troubled by how close the resolution came to the establishment of an anti-Catholic stance. Also in 2009, Berzon dissented in ''Abebe v. Holder'', an immigration case by a lawful permanent resident seeking protection for deportation. Berzon, joined by several other liberal judges, argued that allowing the deportation of Abebe violates equal protection. On May 21, 2013, Berzon blocked Arizona's 20-week abortion ban, saying it was more restrictive than the Partial-Birth Abortion Ban. In October 2014, Berzon joined an opinion that held same sex marriage bans in Idaho and Nevada violated the U.S. Constitution. She wrote a concurring opinion concluding that the prohibitions were not only discrimination based upon sexual orientation, but a form of gender discrimination and therefore subject to heightened scrutiny.


2016

On April 5, 2016, Berzon wrote a concurrence when the 9th Circuit ruled that DACA dreamers cannot be denied driver's licenses. The majority opinion, which Berzon joined, was written by Harry Pregerson.


2017

On July 28, 2017, in ''United States v. Martinez-Lopez,'' Berzon dissented when an ''en banc'' panel allowed multiple convictions for a single offense using multiple drugs. Berzon wrote that a substance must be named, and that multiple convictions for a single offense was a violation of California's multiple convictions code. Berzon was joined by
Stephen Reinhardt Stephen Roy Reinhardt (born Stephen Roy Shapiro; March 27, 1931 – March 29, 2018) was a United States circuit judge of the United States Court of Appeals for the Ninth Circuit, with chambers in Los Angeles, California. He was the last federal ...
and Sidney Runyan Thomas, for all except part four.


2018

On April 9, 2018, in ''Rizo v. Yovino'', Berzon joined the opinion of
Stephen Reinhardt Stephen Roy Reinhardt (born Stephen Roy Shapiro; March 27, 1931 – March 29, 2018) was a United States circuit judge of the United States Court of Appeals for the Ninth Circuit, with chambers in Los Angeles, California. He was the last federal ...
that said prior pay may not be considered for deciding one's salary, under the Equal Protection Act, due to the gender wage gap. Reinhardt's opinion was remanded back to the 9th Circuit on February 25, 2019. The 9th Circuit came to the same conclusion on February 27, 2020, after another judge had been selected to replace Reinhardt on the panel.


2019

On April 1, 2019, Berzon concurred in the denial of ''en banc'' after a panel held that municipal ordinances that criminalize sleeping, sitting, or lying in all public spaces, when no alternative sleeping space is available, violates the 8th Amendment. On May 3, 2019, Berzon joined an opinion ruling for a 14 year old illegal immigrant, saying his deportation would cause him harm. Berzon wrote in a concurrence that the immigrant had shown proof of harm, but she was upset that the court did not mention 5th Amendment rights. Berzon would have ruled that the 5th Amendment guarantees a right of due process for illegal immigrant minors. Richard Paez wrote a similar concurrence also saying that illegal immigrants were entitled to due process under the 5th Amendment, which Berzon and
William A. Fletcher William Alan Fletcher (born June 6, 1945) is a Senior status, Senior United States federal judge, United States circuit judge of the United States Court of Appeals for the Ninth Circuit. Appointed by President Bill Clinton, Fletcher was confirme ...
joined. However, the holding only gave that particular illegal immigrant relief, not extending 5th Amendment rights to others, since there were only three votes of eleven total for the 5th Amendment rights. On August 15, 2019, Berzon ruled in a 3-0 decision that detained migrant children must get soap, sleep, and clean water. She wrote that those necessities were essential to the children's safety.


2020

In ''Ceren v. Barr'', decided on March 5, 2020, Berzon dissented, arguing that the Immigration Judge abused their discretion by refusing to allow the defendant's attorney, who was ill, to finish her closing arguments. On September 2, 2020, Berzon ruled that the NSA program that spied on Americans' cell phones is illegal.


2021-present

Although Berzon voted to largely bar a lawsuit against big tech companies arguing that they are responsible for a terror attack, she called for the Court to take the case ''en banc'' to reconsider precedent that protects such algorithms from Section 230 liability. On January 3, 2022, Berzon voted to rehear the case en banc, as did Judge Gould (also a member of the panel), but the majority of the Court's active judges voted against rehearing. In ''Lemos v. County of Sonoma'', handed down on July 16, 2021, Berzon wrote a 19-page dissent when the majority barred Gabbi Lemos, from filing an excessive force suit against a police officer. The police officer "threw her to the ground" for allegedly "interfering with their investigation". Berzon dissented from the September 10, 2021, decision ''Brandon Hodges v. Comcast''. Hodges, a former Comcast user, sued Comcast in a class action lawsuit for allegedly collecting data about subscribers' television viewing activity and personal demographic data without their consent. The majority dismissed the lawsuit. In ''United States v. Wilson'' (9th Cir. September 21, 2021), Berzon, writing for a unanimous panel, ruled that the police cannot open someone's email attachments without a warrant. In ''Frahait v. ICE'', decided October 20, 2021, Berzon, in dissent, argued that ICE violated the 5th amendment by its inaction on the medical needs of vulnerable immigrants it had detained. Berzon dissented in the Americans with Disabilities Act lawsuit, ''D.D. v. LAUSD'', decided November 19, 2021. The decision was 6-5 on unusual lines; the 5 dissenters were Berzon, 2 other liberals, and 2 textualist conservatives (who wrote their own dissenting opinion). Berzon wrote a 44-page concurring opinion in ''Duncan v. Bonta'', a major 2nd amendment case challenging a law that limits gun magazine capacity to 10 bullets. Berzon's concurrence went through the history of firearms and explained what a judge's role should be. Berzon explained that small sample sizes often create an issue in experiments that judges cite to argue their point, and citing Daniel Kahneman, she explained that "Sample size issues and the drive to draw a single legal conclusion are not the only potential methodological pitfalls for the “text, history, and tradition” test. Cognitive biases ranging from confirmation bias to anchoring bias can cloud a judge’s analysis.2 And very few judges have received formal training on technical elements of historiographical research design, such as the importance of drawing from varied sources and assessing sources to ferret out potential bias imparted by the author." On December 4, 2021, Berzon was one of two judges who declined to halt San Diego Unified School District's requirements that students be vaccinated by December 20. In ''California Chamber of Commerce v. Council for Education and Research on Toxics'', Berzon wrote a strongly worded statement critical of the court's decision to limit access to the courts using the so-called "illegal objective" exception. According to Berzon, the decision "allows a single judge to enjoin potential plaintiffs from filing any sort of lawsuit if the judge predicts that the lawsuits will fail upon a defense grounded in a federal right" and will severely limit enforcement of California's Proposition 65, which aims to reduce toxic chemicals in drinking water. Berzon was joined by
Kim McLane Wardlaw Kim McLane Wardlaw (born July 2, 1954) is an American lawyer and jurist serving as a U.S. circuit judge of the U.S. Court of Appeals for the Ninth Circuit since 1998. She is the first Hispanic American woman to be appointed to a federal appeals ...
, Paul J. Watford, Lucy Koh, and Gabriel P. Sanchez.


Personal life

Berzon is the mother of
Alexandra Berzon Alexandra Berzon is an American investigative reporter for ''The New York Times''. She previously wrote for ProPublica and ''The Wall Street Journal''. Her 2008 series of investigative stories about the deaths of construction workers on the Las ...
, a Pulitzer Prize-winning investigative reporter.


See also

*
List of law clerks of the Supreme Court of the United States (Seat 3) Law clerks have assisted the justices of the United States Supreme Court in various capacities since the first one was hired by Justice Horace Gray in 1882. Each justice is permitted to have between three and four law clerks per Court term. Mos ...


References


External links

* {{DEFAULTSORT:Berzon, Marsha 1945 births Living people 20th-century American judges 20th-century American women judges 21st-century American judges 21st-century American women judges Judges of the United States Court of Appeals for the Ninth Circuit Law clerks of the Supreme Court of the United States Lawyers from Cincinnati Radcliffe College alumni United States court of appeals judges appointed by Bill Clinton UC Berkeley School of Law alumni