Is the 9th Circuit Overturned More Often?

April 23, 2008 8:59 AM

Is the 9th Circuit really overturned by the U.S. Supreme Court more often than the other circuits?

The general impression is that the liberal 9th Circuit is overturned more often, but is it really true? I mean rate of overturn, not number--that circuit produces many more cases than the others, so it would make sense that the number of overturns would be higher. Scotusblog and its wiki provide some statistics, but their numbers don't go back earlier than '04 (when three circuits were overturned at a higher rate than the 9th). Does anyone know where to find more complete numbers?

posted by goatdog to Law & Government (11 answers total)

Here is an article discussing the issue with numbers from the 2002 term.
posted by The Bellman at 9:12 AM on April 23, 2008

There are lots of different measures, so it depends on what you mean by "more often," even in relative terms. My sense is that the cert grant rate (the rate of review per decided case, but it could also be measured against published opinions, or petitions), the reversal rate (the rate of reversals per decided case, or the other denominators mentioned before, or perhaps per grant), and the dunk rate (the likelihood that a reversal will be unanimous or a supermajority), are consistently at the top or near the top. Googling will bring you a lot of debate about this, including on Slate and Volokh. You might also look at the Harvard Law Review's annual compendium of Supreme Court statistics, published each November.
posted by Clyde Mnestra at 9:41 AM on April 23, 2008

In addition to TWF's fantastic comment above, let me also point out that because the 9th is the largest circuit, there is simply a likelihood of more suits filed in general, which of course leads to them being heard before more judges than in any other circuit, leading to more opinions, etc.

In the main, I've found this meme (9th Cir. most overthrown) to be a shibboleth forwarded by so-called "originalists" or other Federalist sympathizers. YMMV.
posted by deejay jaydee at 10:24 AM on April 23, 2008

"Two weeks ago, a panel of Ninth Circuit judges held oral argument at UC Berkeley School of Law. In a Q&A session following the oral argument, the three Judges (Noonan, Thomas, and Bybee) were asked to comment on the Ninth Circuit's reversal rate at the Supreme Court. Boalt student Patrick Bageant was there, and he blogged the exchange over at Nuts & Boalts as follows:

Judge Noonan: "Typical numbers are 20 out of the 16 thousand cases that come before this court. Who is worrying? It's like being struck by lightning."
Judge Thomas: "Well, in that case I've been struck by lightning a time or two."

Judge Thomas: "It's largely a media myth. But you just take the reputation, like Dennis Rodman."
Judge Bybee: "We're the Dennis Rodman???"
Judge Thomas: "Yeah, we're like the bad boys of the federal circuit.""

Via.
posted by the christopher hundreds at 10:44 AM on April 23, 2008 [3 favorites]

Some of the impression may be due to "misleading vividness". There have been some pretty high profile cases.

For instance, the Ninth Circuit issued a stay to stop an execution in California. An appeal to SCOTUS resulted in the stay being lifted, so that the execution could proceed. At which point the Ninth issued another stay. SCOTUS in turn lifted that one.

And then the Ninth issued yet another stay, after which SCOTUS lifted that one, and also issued an order saying there would be no further stays. The executionm was then carried out. All of this happened in one evening.

You'd think that the Ninth would have understood the situation and stopped after the first one. SCOTUS ranks higher than the Ninth Circuit, after all. But this is an indication of the kind of attitude that the Ninth is reputed to have, about precedent, and about its position in the grand scheme of things.
posted by Class Goat at 12:30 PM on April 23, 2008 [1 favorite]

I don't think it's just a matter of the size of the circuit. A lot of it is due to a Senate tradition regarding circuit court judges. The Senate has a long-standing gentleman's agreement that senators in each circuit have what amounts to a veto over candidates for positions on those circuit courts.

The Ninth Circuit includes California, and various California senators have been using this veto to kill nominations of judges who are not, shall we say, left-wing and judicially-activist. Someone like Chief Justice Roberts could never have been confirmed for a position on the Ninth Circuit.
posted by Class Goat at 12:40 PM on April 23, 2008

Ninth Circuit is in fact the largest circuit court in the nation, covering nine states and two territories, and with 28 judges (the next is Fifth Circuit, with 17 judges). To answer your basic question, yes - the Ninth Circuit has historically been overturned more than other circuit courts: "Over the past fifty years, the Ninth Circuit, the largest circuit court in the country, has been reversed by the U.S. Supreme Court an average of 10.78 times per term. The next closest circuit, the Fifth Circuit, which is also the second largest circuit, was reversed an average of 7.42 times." (Kevin Scott, Supreme Court Reversals of the Ninth Circuit, 48 Ariz. L. Rev. 341.)

But there's apparently a good deal of disagreement as to whether this alone accounts for the high rate of reversal.

Judge Posner ran some statistical analysis on reversal rates for the circuits and concluded that Ninth Circuit's uniquely high rate of summary reversal is likely not a statistical fluke nor a product of the large number of judges. (Is the Ninth Circuit Too Large? A Statistical Study of Judicial Quality, 29 J. Legal Stud. 711.) Judge Farris argues this may be attributed to high volume of cases and the Ninth Circuit's willingness to resolve controversial issues. (Judges on Judging: The Ninth Circuit-Most Maligned Circuit in the Country-Fact or Fiction?, 58 Ohio St. L.J. 1465.) However, most commentators (aside from Posner) seem to tend to agree that statistical analysis alone is not a sufficient answer - that is, there are many more complicated factors that may affect the reversal rate that are not accounted for in the simple reverse statistics.
posted by detune at 12:52 PM on April 23, 2008

Two minor additions.

"...a good deal of disagreement as to whether this alone..." should read "...a good deal of disagreement as to whether its size alone..."

And if you want to do some independent statistical analysis, here is a link to the Supreme Court Database which K. Scott used for his calculations in the above-cited article.
posted by detune at 12:59 PM on April 23, 2008

I'm sure the size and liberal-leaning judges play the biggest part in the 9th's reversal rate, but don't forget the fact that it's just generally quirky. No circuit's region is homogeneous, but the difference between California and the rest of the states in the 9th could be especially great. This might mean that the judges sitting together come from even more divergent backgrounds than usual, which could influence the opinions.

The general craziness of California's populations and industries leads to a lot of cases that might not arise elsewhere, which could also affect the rate of being overturned. Also, the judges in the 9th aren't uniformly liberal, of course. The well-known conservative ones (like Kozinski) aren't all doctrinaire, though, and many even contain crazy independent streaks or penchants for unpopular legal theories. It's not just the most liberal circuit, it's the most crazy circuit.
posted by aswego at 1:21 PM on April 23, 2008

Here is a link to Term Statistics for 2005 compiled annually by the Harvard Law Review. Looking at these reports year-by-year and working backwards will get you the data you need, assuming it's not already compiled elsewhere.

Page 427 has the chart you need.

Reversal rates like this are going to invariably change as the sitting judges of the 9th Circuit and the Supreme Court change. These courts do not exist in a vacuum.
posted by Brian James at 3:16 PM on April 23, 2008

See also this chart on pg 523, which goes back to 1994. What more do you need?
posted by Brian James at 3:20 PM on April 23, 2008