On January 27, 1998, Berzon was nominated by Bill Clinton to the Ninth Circuit for the seat vacated when John T. Noonan took senior status in late 1996. Clinton renominated Berzon on January 26, 1999. Berzon was confirmed by the U.S. Senate in a 64-34 vote on March 9, 2000 and received her commission on March 16, 2000.
Notable cases
In a 2009 decision, Judge Berzon wrote that while a San Francisco resolution condemning the Vatican is in line with current Establishment Clause jurisprudence, she was troubled by how close the resolution came to the establishment of an anti-Catholic stance. On May 21, 2013, Berzon blocked Arizona's 20-week abortion ban, re-enforcing a woman's right to choose, and explained why it is more restrictive than the Partial-Birth Abortion Ban. Berzon: "Under controlling Supreme Court precedent, Arizona may not deprive a woman of the choice to terminate her pregnancy at any point prior to viability. Section 7 effects such a deprivation, by prohibiting abortion from twenty weeks gestational age through fetal viability. The twenty-week law is therefore unconstitutional under an unbroken stream of Supreme Court authority, beginning with Roe and ending with Gonzales. Arizona simply cannot proscribe a woman from choosing to obtain an abortion before the fetus is viable." In October 2014, Judge 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. 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 the late Harry Pregerson. On March 17, 2017, Berzon wrote a concurring opinion in the denial of en banc after a 3 judge panel blocked Trump's asylum ban. 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 and Sidney Runyan Thomas, for all except part 4. On October 10, 2017, Berzon wrote the majority opinion that ruled that the Second Amendment did not give a right to sell firearms. Rizo v. Yovino : Berzon joined the opinion of Stephen Reinhardt 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. 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. Furthermore, Berzon in a concurrence saying that the immigrant has 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 joined. However, the holding only gave that particular illegal immigrant relief, not extending 5th amendment rights to others, since there were only 3 votes of 11 total for the 5th amendment rights. Accordingly, Judge Berzon observed that the court shut one door to the courthouse in J.E.F.M. on the promise of keeping another open, only to duck out of that door—for now—as well. On August 15, 2019, Judge 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. She also wrote "The district court properly construed the Agreement as requiring such conditions rather than allowing the government to decide whether to provide them". On May 22, 2020, Berzon dissented when the 9th circuit denied bail to a prisoner. Berzon noted that Dade was particularly vulnerable to contract COVID-19 since he had a history of respiratory issues, and "advanced age put him in the high-risk category should he contract the virus".
