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Heavy Caseload to Blame for Ninth Circuit’s Bad Rap

May 3, 2018, 1:09 PM

The Ninth Circuit, based in the western U.S. and including California, has a reputation for perennially having the worst record at the U.S. Supreme Court.

The court’s critics-who’ve dubbed it the “Ninth Circus"-point to its reversal record as evidence of the court’s overreaching and its liberal bent. But a Bloomberg Law analysis of court data shows that the appeals court has a better record than several of its sister circuits.

When one considers the total number of cases the Ninth Circuit hears, and focuses on the percentage of those cases that are reversed by the Supreme Court-seven circuits actually have the same or worse records.

Even so, the circuit’s 2017 decision striking down President Donald Trump’s travel ban and its January ruling prohibiting Trump from winding down the Obama-era program aimed at helping Dreamers have put the circuit under strong scrutiny from conservatives, including Trump.

Trump has targeted the federal appeals court in multiple tweets. “It just shows everyone how broken and unfair our Court System is when the opposing side in a case (such as DACA) always runs to the 9th Circuit and almost always wins before being reversed,” Trump tweeted Jan. 10 following the administration’s loss over the Deferred Action for Childhood Arrivals program for Dreamers. Calls to break up the massive circuit have been around for decades, Sen. Jeff Flake (R-Ariz.), a leading proponent of the proposal, said in a 2017 statement.

After sharp criticism from Trump, the Republican-controlled Congress last year once again considered breaking the circuit in two. As support for the proposal, Rep. Darrell Issa (R-Calif.) noted that it’s the “most reversed circuit.”

By one measure-the raw number of reversals by the Supreme Court-Issa is right.

Over the last seven terms, the Ninth Circuit has been reversed 108 times, which is more than any other circuit, according to SCOTUSblog statistics. The second most reversed circuit is the Fifth, with 41 reversals. But that’s not the whole story.

Busiest Circuits

The Ninth Circuit is by far the largest of the 13 federal circuits, hearing about one in every five federal appeals.

It’s no coincidence that the two most overturned circuits-the Fifth and the Ninth-are also the busiest.

Still, the Ninth Circuit’s 108 reversals seem striking when compared to the Fifth Circuit’s 41.

But the Ninth Circuit also heard about 29,000 more cases than the Fifth Circuit did during that same period, according to statistics from the Administrative Office of the U.S. Courts. The Fifth Circuit heard approximately 46,000 appeals. The Ninth Circuit heard around 75,000.

Moreover, the Supreme Court more often than not takes a case to reverse it, Rory Little, a professor at the University of California Hastings College of Law, San Francisco, told Bloomberg Law. “During the past five terms, the Supreme Court reversed 72.4 percent of all cases it decided,” Sen. Dianne Feinstein said in a 2017 statement.

Given its size and the Supreme Court’s propensity for overturning cases, it’s no surprise that the Ninth Circuit regularly has the highest number of reversals for any given term, Little said.

Vocal Judges

The Ninth Circuit still has a bad rap. It comes, in part, from its judges.

Of the 22 active judges currently on the court, 16 were appointed by Democratic presidents.

And several of those liberal judges are very vocal, Adam Feldman, of Empirical SCOTUS, told Bloomberg Law. Both he and Little pointed to longtime Judge Stephen Reinhardt, who passed away March 29. He has been quoted as saying that he’d continue to issue liberal rulings despite Supreme Court reversals because the high court " can’t catch ‘em all.”

The circuit has also had a number of high-profile rulings in important civil liberties cases, Feldman said. He noted the Ninth Circuit’s 2002 ruling holding the Pledge of Allegiance unconstitutional because of its use of the words “under God.” The Supreme Court unanimously overruled that decision.

“The general correlation between Democratic appointees and liberal rulings has likely spurred on” the idea that the Ninth Circuit is out of step with the rest of the judiciary, “whether or not it is accurate,” Feldman said.

Not Infallible

The fact that the Ninth Circuit is more liberal than the Supreme Court, though, doesn’t make it wrong-it just makes it different, Little said.

Five of the current Supreme Court justices were appointed by Republicans, and the Roberts Court has a reputation for being quite conservative. So you’d expect it to overturn liberal decisions from the Ninth Circuit, he said.

But the Supreme Court isn’t final because it is infallible, but rather infallible only because it is final, Little said, quoting Justice Robert Jackson.

Looking solely at a circuit’s Supreme Court reversal rate isn’t a good reflection of the accuracy of its decisions, Little said.

‘Time and Again’

Even if that was a good reflection, the Ninth Circuit wouldn’t be the worst circuit.

Although the Ninth Circuit has the most raw number of reversals, the Sixth Circuit actually has the highest rate of reversal-percent of cases reversed versus affirmed-for cases actually considered by the Supreme Court.

The Ninth Circuit is still among the worst, with a reversal rate of 82 percent. But the Sixth Circuit’s rate is 87 percent.

The Sixth Circuit’s record over the past few terms has prompted some to dub it the “new Ninth.”

Specialized Dockets

The better way to analyze the circuit’s records is to compare the total number of cases heard by circuit to the number of times the Supreme Court reversed that circuit, Fitzpatrick said. It gives you a better idea of how much of the circuit’s work goes untouched by the Supreme Court, Brian Fitzpatrick, of Vanderbilt Law School, Nashville, Tenn., who has testified before Congress on the proposed breakup of the Ninth Circuit, told Bloomberg Law.

Under that model, the circuits with the worst records are the D.C. and Federal Circuits.

Both of those circuits have specialized dockets, Roy Englert, of Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, Washington, told Bloomberg BNA.

The D.C. Circuit decides, among other things, important administrative law questions and constitutional litigation against the government, Fitzpatrick said.

As for the Federal Circuit, all patent cases in the nation go to that circuit.

In other areas of the law, the Supreme Court will typically wait until federal appeals courts disagree before it weighs in. The court can’t do that in the patent realm, so these cases tend to get high court review, Englert said.

Method Matters

The unique dockets of the D.C. and Federal circuits suggest that they should be left out of the equation, Fitzpatrick said. Those circuits just aren’t comparable to the others.

If you do that, the circuits with the “worst” records are the First and the Tenth-even though those circuits have some of the lowest raw numbers of cases overturned.

So, it really matters which numbers you look at, Fitzpatrick said.