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In Defense of the 9th CircuitWhy the federal appeals court from the Left Coast doesn't deserve its bad rap.

By Cullen Seltzer
Posted Monday, July 16, 2007, at 4:09 PM ET
Illustration by Mark Alan Stamaty. Click image to expand.

Conservative critics have made it an article of faith that the U.S. Court of Appeals for the 9th Circuit is populated by a bunch of loose cannon, lefty judges. Rush Limbaugh thinks the 9th is a "circus." Vanderbilt law professor Brian Fitzpatrick recently argued in the Los Angeles Times for breaking up the court to mitigate the effect of its "extreme judges." George Will has urged the creation of two separate Supreme Courts: One to hear 9th Circuit cases and the other to hear everything else. Presumably he's joking, but you get the point.

As proof of the 9th's judicial failings, the critics generally stress the court's extra-high rate of review and reversal by the Supreme Court. The numbers, though, tell a less damning story than the alarmist portrayals of the court.

The 9th Circuit hears appeals from Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, the territories of Guam and the Northern Mariana Islands, and the granddaddy jurisdiction of them all, California. I had a law school professor who referred to California law as "hot tub law"; part of the disdain for the 9th surely derives from national skepticism of all things Left Coast. But set that aside: The main thing is that the states that fall within the 9th Circuit represent almost 20 percent of the U.S. population (59.6 million people out of about 299 million). That means that the 12 other federal circuit courts of appeal split up the remaining 80 percent of the country, making the 9th Circuit three times their average size. Consistent with the population weight it carries, the 9th Circuit in 2006 accounted for about 18.4 percent of all decided federal appeals cases. Compare that with the 1st Circuit, with 4.7 percent of the population and 3.2 percent of decisions, or the 8th Circuit, with 6.7 percent of the population and 6.7 percent of decisions.

What percentage of the Supreme Court's docket is comprised of appeals from the 9th Circuit? Last term, according to SCOTUSBlog, 32.8 percent of the on-the-merits cases that the Supreme Court reviewed from the federal courts of appeals came from the 9th Circuit. The numbers from the two previous years are similar, if slightly lower: for the 2004 October Term, 26.8 percent; for the 2005 October Term, 28.1 percent.

So, yes, 9th Circuit cases were disproportionately represented in the Supreme Court. Since caseload and population would predict a review rate of 18 percent to 20 percent, the justices heard between one and a half times and twice as many cases from the 9th as would have been expected. But because the Supreme Court's docket is small, the number of "extra" cases from the 9th is also small: nine for the last term. That's a substantial part of the Supreme Court's docket, which totaled 73 cases last year, 64 of them from the federal courts of appeals. But nine cases represents only 0.1 percent of the 9th Circuit's 6,387 on-the-merits decisions for the 12 months ending in September of 2006. That's a fair measure of judges going nutty only if you think that 0.1 percent is statistically interesting.

Now let's look at how often the Supreme Court decides that the 9th got it wrong. Last term, the Supreme Court's reversal rate for 9th Circuit cases was 90.5 percent. Yikes—that's huge! But wait, for on-the-merits cases, the Supremes reversed the 3rd and 5th Circuits almost all of the time* last term. Cases from state appellate courts fared no better: They also had a 100 percent reversal rate. Overall, this past term the Supreme Court reversed 75.3 percent of the cases they considered on their merits. The pattern holds true for the 2004 and 2005 terms as well, when the Supremes had overall reversal rates of 76.8 percent and 75.6 percent, respectively. For those years, the 9th was reversed 84 percent and 88.9 percent of the time, or about a case or two more each year than it would have been if it had conformed to the reversal rate of the other circuits. How do one or two cases a year add up to a court run amuck?

It's also not necessarily the case that a higher reversal rate by the Supreme Court means that an appeals court is doing a bad job. The lower court judges may be bad at predicting what the Supreme Court will approve or disapprove. Or they may not care: They may want to test an idea or take a stance that's at odds with the current direction of the Supreme Court. Or they may perceive that existing law, as previously dictated by their own circuit or by earlier Supreme Court decisions, requires a certain outcome, even as they understand the justice may change that law if they take the case for review.

For example, this term the Supreme Court issued its landmark opinion, stemming in part from a 9th Circuit decision, resolving two school desegregation cases. For a majority of five justices, Chief Justice John Roberts claimed to be upholding the legacy of Brown v. Board of Education. In his dissent for the other four justices, Justice John Paul Stevens wrote, "It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision." His point was that on the Supreme Court, getting the law "right" may have as much to do with getting the votes of five justices as it does with parsing decades of precedents. Jeffrey Toobin persuasively made a similar argument about the many 5-4 splits this term.

In the end, the positions the lower appeals courts take and the ones the Supreme Court hands down is that the Supremes get the final say. That's why you hear constitutional law professors emphasize that the Supreme Court is right because it's last, not last because it's right. It's worth remembering that when a judge, or a court, is singled out for special criticism.

Correction, July 18, 2007: The original sentence incorrectly stated that the Supreme Court revered the 3rd and 5th circuits in all cases last term. In fact, the court affirmed one Fifth Circuit on-the-merits ruling. (Return to the corrected sentence.)

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Cullen Seltzer is an attorney in Richmond, Va., and an adjunct professor at the T.C. Williams School of Law at the University of Richmond.
Illustration by Mark Alan Stamaty.
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Remarks from the Fray:

What about cases where there was a circuit split and the Supreme Court took a case from a different circuit? Those should count. Say there is a split with all the even circuits on one side, and all the odd circuits on the other. If the Supremes take a case from the Second Circuit, and reverse that Court, that should count in the plus column for the all the odd numbered circuits

--midwesttiger

(To reply, click here.)

I am not concerned with the amount of reversals so much as the degree of reversals. [Has there] been a history of 9-0 and 8-1 reversals of the 9th circuit?

--Textualist

(To reply, click here.)

Someone once said, "Statistics are like a bikini. What they reveal is interesting but what they conceal is vital." So is the little stat lesson on the Court.

He states that 18-20% of the 73 SCOTUS cases are population weighted to be from the 9th circuit. But then he claims that 1.5 to 2 times as many or 9 cases total were in excess of the 18-20%.

18% of 73 equals 13 cases plus 9 "extra" cases equals 22 cases or 30% of the SCOTUS cases. 20% of 73 equals 15 cases plus 9 "extra" cases equals 24 cases or 33 % of the SCOTUS cases.

With a reversal rate of 87% average that means that 21 out of 24 cases were reversed or about 25-29% of the SCOTUS case load was spent straightening out the 9th Circuit. […]

The most interesting part is Selzer's quoting Stevens on the current court not sticking to precedent but then explains the variance of the 9th's decisions for these reasons:

"They may want to test an idea or take a stance that's at odds with the current direction of the Supreme Court."

"The lower court judges may be bad at predicting what the Supreme Court will approve or disapprove. Or they may not care."

"Or they may perceive that existing law, as previously dictated by their own circuit or by earlier Supreme Court decisions, requires a certain outcome, even as they understand the justice may change that law if they take the case for review."

This last statement is the most interesting. The spin of the "previously dictated by their own circuit", is certainly a disingenuous way of saying (predicated on the turnover rate for the 9th circuit) that when overruled by SCOTUS, that the 9th circuit will ignore SCOTUS. This is confirmed by the first reason listed above from Selzer. Since when are lower courts allowed to take stands against higher courts? And as Selzer puts it in the next reason, "they (9th circuit) do not care."

Yet Selzer suggests with a moan that in his opinion SCOTUS did not follow precedent. I have a few consolations for Selzer why SCOTUS did this:

SCOTUS may have wanted to test an idea or take a stance that's at odds with the current direction of the 9th Circuit

"The higher court judges may not care what the 9th Circuit decided."

"Or they may perceive that existing law, as previously dictated by SCOTUS or by earlier Supreme Court decisions, requires a certain outcome, even as they understand the justice may change that law if they take the case for review."

--TheRanger

(To reply, click here.)

(7/17)

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