The U.S. Supreme Court's recent decision in Kernan v. Cuero, 138 S.Ct. 4 (2017) makes one wonder why the Court of Appeals for the Ninth Circuit makes itself such an easy target for its critics.

In December 2005, Michael Daniel Cuero pled guilty in California state court to causing bodily injury while driving under the influence of methamphetamine and unlawfully possessing a firearm. Cuero's car had veered off the road and crashed into a bystander, causing severe injuries. The plea agreement promised a sentence of 14 1/3 years' imprisonment and was premised on the assumption that Cuero had one prior conviction. The day before sentencing, however, the prosecutor filed an “amendment,” advising the court that Cuero, in fact, had two prior convictions and was therefore subject to an indeterminate sentence of 64 years to life. (The probation office had discovered the additional strike in preparing its pre-sentence report.) The court then permitted Cuero to withdraw his plea, which he did. Subsequently, Cuero entered a new plea, in which he admitted his two prior convictions and was sentenced to 25 years to life.

On appeal, the California Court of Appeals rejected Cuero's claim that he was entitled to specific performance of the original plea agreement and upheld his sentence.

What followed was a federal habeas petition, which the District Court denied, and an appeal to the Ninth Circuit. A divided panel granted the writ, directing the state to resentence Cuero “in accordance with the original agreement.” Finding that Cuero “had performed his part of the agreement by pleading guilty,” the majority concluded that “fundamental fairness demands the state be compelled to adhere to the agreement as well.”

Judge Diarmuid O'Scannlain filed a vigorous dissent. As he noted, under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the question for a federal habeas court is whether the state proceedings had “resulted in a decision that was contrary to, or involved, an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. §2254(d)(1). The answer to that question, Judge O'Scannlain opined, was straightforward. In Santobello v. New York, 404 U.S. 257 (1971), decided in 1971, the Supreme Court held that it was left “to the discretion of the state court” whether the remedy for a breach of a plea agreement should be specific performance or withdrawal of the guilty plea. Specific performance was not required. If that was federal law “as determined by the Supreme Court,” then Cuero was not entitled to relief.

Not surprisingly, the state sought en banc review, which was denied. Seven judges dissented from the denial, writing that the decision to grant the writ “invit[ed] summary reversal by the Supreme Court.” They were right. On Nov. 6, 2017, the Supreme Court, in a summary opinion (without full briefing or argument), unanimously reversed the Ninth Circuit. The Supreme Court quoted from Santobello and noted that in Mabry v. Johnson, decided in 1984, it had observed that “Santobello expressly declined to hold that the Constitution compels specific performance of a broken prosecutorial promise” and that, “permitting Santobello to replead was within the range of constitutionally appropriate remedies.” 467 U.S. 504, 510-11 (1984). Hence, a federal habeas court could not say that federal law as interpreted by the Supreme Court clearly established that specific performance was constitutionally required. Indeed, just the opposite was true.

What does one make of Cuero? To be blunt, the Ninth Circuit's decision is mind-boggling. On my criminal procedure exam at Columbia Law School, I ask this question: Does Santobello require specific performance of a plea agreement in the event of a prosecutorial breach? A “yes” answer gets it wrong. It is not meant to be a hard question. And Mabry, which is the Supreme Court's last word on the subject, could not be clearer. (The Ninth Circuit dissenters quoted the relevant language from Mabry.) Only a court willfully blind to controlling law could reach the result that the Ninth Circuit did in Cuero.

No doubt the Ninth Circuit majority was motivated by two factors. One was its dislike of California's three strikes law, which has fueled mass incarceration. And two was its dislike of AEDPA, which imposes a highly deferential standard of habeas review on federal courts. But not liking the law is hardly a reason for not following it.

Cuero marks the 14th time in the last 12 years (since the beginning of the Roberts court) that the Ninth Circuit has been summarily reversed in a habeas case. Twelve of the 14 have been unanimous opinions. As Prof. Akhil Amar of Yale Law School has written, “when you're not picking up votes of anyone on the [Supreme] Court, something is screwy.” Akhil Amar, “Does the Supreme Court Hate the Ninth Circuit?,” Findlaw (April 19, 2002). Moreover, several of the Supreme Court's opinions include scolding language. In one, the court wrote that the Ninth Circuit's decision was “as inexplicable as it is unexplained.” Felkner v. Jackson, 562 U.S. 594 (2011). In another, it wrote that the Circuit had “profoundly misapprehend[ed]” the law. Johnson v. Lee, 136 S. Ct. 1802 (2016). And in a third, it wrote that “no fair‑minded jurist” could have reached the result that the Circuit had. Nevada v. Jackson, 569 U.S. 505 (2013). Cuero was gentle in comparison, but it was still a rebuke.

Cuero provides ready fodder for those who believe that the Ninth Circuit is heedless of the law. Why would a court do that to itself?

Paul Shechtman is a partner at Bracewell in New York and teaches evidence and criminal procedure at Columbia Law School.