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Thursday, July 12, 2007

When a Court of Appeals is Reversed by SCOTUS, Is That Evidence That the Circuit Is "Not Doing A Very Good Job"?

Brian Fitzpatrick muses at the LA Times about the Ninth Circuit and its propensity to being reversed by the Supreme Court.  Here's a taste:

The 9th Circuit also has a long-running streak as the most overturned, which went unbroken this year. The Supreme Court reviewed 22 cases from the 9th Circuit last term, and it reversed or vacated 19 times. By comparison, the Supreme Court reviewed only five cases, vacating or reversing four, from the next-busiest court of appeals, the 5th Circuit based in New Orleans.

In other words, although the 9th Circuit decided only one-third more appeals on the merits than the 5th Circuit, it was reversed nearly five times more often.

These numbers suggest that the 9th Circuit is not doing a very good job.

Is that right?  Is a Circuit Court of Appeals "not doing a very good job" simply because 5 of 9 of our "great jurists" tend to disagree with it?  Does it even tell us much if the court is reversed unanimously?  The column uses Newdow as an example -- but that "unanimous" decision at the Supreme Court hardly touched upon the merits of the Ninth Circuit opinion in a meaningful way.

I realize this is just an op-ed -- but I would think that we'd need a much more reliable indicator that a circuit is "not doing a very good job" than merely a statistical fact about reversal.  Indeed, one who doesn't much like what the Supreme Court does and one who is agitating for some new interpretations of old law might think the reversed circuit is doing a great job in being a voice of dissent.  More, one would need to have a baseline sense of "extreme" ideological decision-making to make much sense of the op-ed; I would think plenty of people see our Supreme Court headed in an "extreme" direction and are grateful for a Ninth Circuit counterforce.  Given that the Supreme Court accepts stunningly few cases, the Courts of Appeals are for most litigants courts of last resort.  Judging these courts by their reversal rate in the smallest sampling of cases (22 of about 6,000 this year!) seems misguided.

Posted by Ethan Leib on July 12, 2007 at 01:11 PM in Legal Theory | Permalink

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These stats are silly. Cases that come before courts of appeal often deal with a large number of individuals. Whereas, some don’t. Some issues are percolating for a long time, and one circuit just happens to have a case where the record is so pure as to merit a grant of cert. Some issues have been consolidated before one court or another for various reasons (i.e. the GTMO cases, which so far have a 100% reversal rate).

Strangely, none of these statistics really seem to care too much about the massive amounts of Booker GVRs from awhile back, which probably show why such stats are silly.

Whatever the case, the op-ed was written by a non-lawyer who could not have read the cases and could not possibly have even understood the issues.

Posted by: S.cotus | Jul 12, 2007 2:53:04 PM

Brian's op-ed begs the question, what is it that the Ninth Circuit is not doing a very good job of? At the very least, we can agree that they're not doing a very good job of resolving the law in ways that the SCt agrees with. The assumption of the op-ed appears to be that not conforming to the higher court's vision of the law is a failure by the lower court. But the kinds of cases taken by the SCt are almost invariably ones that raise open-ended questions not readily resolved by blackletter law, making the project of conforming to preexisting precedent much murkier.

This points to another possible explanation for the 9th Circuit's higher reversal rate: it could be that more of the kinds of tricky social issues likely to require or invite the SCt's attention arise in that region. If California tends to be more of a politically charged hotbed than the states comprising the Fifth Circuit, then a higher percentage of the cases that come before the Ninth Circuit will raise cert-worthy issues.

Of course, there's no denying that the Ninth Circuit and the SCt are ideologically far apart, and that this explains the high reversal rate, at least in part. But characterizing the Ninth Circuit as "extreme" assumes away the possibility of the SCt's own extremism. Cass Sunstein has a post on the UC Fac Blog about the ideological drift of the SCt:

http://uchicagolaw.typepad.com/faculty/2007/07/the-supreme-cou.html

So if we imagine that, in the early 1990s, the SCt was somewhat left of center and the Ninth Circuit was too, and that since then the federal judiciary as a whole and the Court in particular have become strongly more conservative while the Ninth Circuit remained where it was, then the explanation for the high reversal rate doesn't seem to be Ninth Circuit extremism so much as the Court's trending rightward. The latter proposition could be tested pretty readily by tracing the Ninth Circuit's reversal rate over time.

Posted by: Dave | Jul 12, 2007 2:59:25 PM

While being reversed from time to time isn't in itself evidence that a court's not doing a good job, surely as the reversal rate climbs as a percentage of all reviewed cases from that circuit, that starts to raise red flags, as does the manifestly lopsided votes for reversal.

If you had a hypothetical court of apppeals that term after term was consistently disproportionately represented on the Supreme Court's cert docket, and in the overwhelming majority of those cases the hypothetical court of appeals was being reversed, that would at very least suggest that the court of appeals was out of step with the Supreme Court. Of course, as Ethan notes, being out of step with the Supreme Court doesn't inherently mean it's doing a bad job (if a President Kerry had replaced Rehnquist and O'Connor, one might well imagine a court of appeals that were out of step with the Supreme Court being an exceedingly good thing), but when those reversals are signed onto by liberal and conservative justices alike, that gives credibility to the case that "out of step" does, for this hypothetical court of appeals, mean "not doing a very good job." The question is whether the Ninth Circuit actually resembles that hypothetical.

My immediate instinct was to disagree with Ethan's observation that really there aren't that many 9th cir reversals by the Supreme Court, because of course the Supreme Court only takes relatively few cases, period. The better measure would be to compare the Ninth Circuit's share relative to the other circuits. Still, on reflection, that argument doesn't carry too much weight: it isn't as if the docket is groaning under the weight of an excessive caseload, which suggests that if there really were untold multitudes of badly-decided cases in the 9th Cir, if it really was doing a just atrocious job, there'd be room for those cases to be reviewed if the Supreme Court wanted to really tackle the issue.

Posted by: Simon | Jul 12, 2007 3:04:56 PM

Dave:So if we imagine that, in the early 1990s, the SCt was somewhat left of center and the Ninth Circuit was too, and that since then the federal judiciary as a whole and the Court in particular have become strongly more conservative while the Ninth Circuit remained where it was, then the explanation for the high reversal rate doesn't seem to be Ninth Circuit extremism so much as the Court's trending rightward.That's theoretically plausible, but it doesn't account for the vote tallies. It doesn't really work unless the reversals are fairly consistently by 5-4 votes. Unless one is seriously going to argue that Justices Stevens, Souter, Ginsburg and Breyer are drifting right over time, the parade of unanimous reversals tends to undercut (or at least limit the application of) the idea that the 9th cir has stayed still while the Supreme Court has drifted right.

Posted by: Simon | Jul 12, 2007 3:10:13 PM

One view is that a primary role of the lower courts is to predict how the Supreme Court would decide any given case. According to that view, the Ninth Circuit is doing a less-good job than the other Circuits (though overall it is doing just fine, since in absolute terms, a very small percentage of its cases get overturned).

This seems to me an impoverished and reductionist view of the role of the lower courts (though it carries some weight as a descriptive matter and is surely ONE role that the lower courts play), but it may be Fitzpatrick's baseline.

Posted by: Hillel Levin | Jul 12, 2007 3:10:54 PM

Simon: "That's theoretically plausible, but it doesn't account for the vote tallies. It doesn't really work unless the reversals are fairly consistently by 5-4 votes. Unless one is seriously going to argue that Justices Stevens, Souter, Ginsburg and Breyer are drifting right over time, the parade of unanimous reversals tends to undercut (or at least limit the application of) the idea that the 9th cir has stayed still while the Supreme Court has drifted right."

Right, the idea that all the Justices think the Ninth Circuit has the law wrong cuts back against the idea that the issue is simply ideological divergence. But as the Sunstein post I linked to above suggests, the current "liberal" justices aren't really that liberal; they're nothing like Blackmun or Thurgood Marshall, although they're often characterized as extreme because of their position relative to the other Justices. I'd still be interested to see how Ninth Circuit reversal rates have changed over time. Someone must have done an empirical study of this.

Posted by: Dave | Jul 12, 2007 3:23:52 PM

Dave:the Sunstein post I linked to above suggests, the current "liberal" justices aren't really that liberal; they're nothing like Blackmun or Thurgood MarshallWell, that's the right way to summarize it: it suggests it. Or, more baldly yet, just states it, and Prof. Sunstein isn't exactly the sort of disinterested observer that one might be willing to accept ipse dixit from. It's easy to say that the liberal bloc today isn't as liberal as Brennan, Marshall and Blackmun, but of course they don't have the votes to express it. Is there really any doubt how Souter, Ginsburg and Breyer would have doubted in Garcia? In Union Gas? Is there really any doubt what would have happened in Lopez or Alden if the dissenters had had one more vote?

I realize it's a hard thing to quantify (for example, what is the "conservative" view on excessive damages, or Apprendi? What's the liberal view? Such cases aligned Scalia, Thomas and Ginsburg against Rehnquist, Stevens and Breyer. True enough, none of the liberal bloc have adopted the "never ever" view of the death penalty, but I think Souter's heading that way (recall it took Blackmun until Callins, two decades (-ish) after he joined the court), and at least two members of the court seem to have a position that would functionally obliterate the death penalty, by declaring long periods on death row as unconstitutional and then allowing prisoners to run out the clock in litigation (see Knight v. Florida, 525 U.S. 944 (1998) (Breyer, J., joined by Stevens, J., dissenting from denial of cert)).

So I'd hesitate to say that today's liberal bloc is less liberal than yesterday's - it's just not had the votes. And on an abstract level, Breyer's approach is not really any better than Brennan's approach. It'd be an interesting paper to read, though - a systematic comparison.

Posted by: Simon | Jul 12, 2007 3:52:07 PM

The political bent of the various courts at issue is (sort of) an empirical question that we don't appear to have the answer to. Ultimately, what puzzles me a bit about Brian's op-ed is the suggestion that the 9th Circuit has become more extreme over time. How would this have taken place? Since the Reagan Administration, the entire federal judiciary has trended conservative, thanks in large part to the Republicans' control of the executive branch (and their ability to limit Clinton's nominations with control of the senate for six of those eight years). Certainly California itself has remained dominated by Democratic senators who are influential in the nomination process, but this has remained pretty constant since the 1980s. So my conjecture--and it's just a conjecture--is that the increasing ideological distance between the SCt/fed courts as a whole and the Ninth Circuit is due more to the rightward drift of the former than the leftward drift of the latter.

Posted by: Dave | Jul 12, 2007 5:38:08 PM

Dave - this is idle speculation on my part, but my guess is that one answer to your question ("How would this have taken place") would be that if vacancies on the 9th cir had arisen in a way such that a disproportionate number of appointments to that circuit (compared to other circuits) had happened to sidestep GOP administrations. There's 51 active Judges (including those on senior status) in the Ninth Circuit. 27 of them - comfortably over half - were appointed by Democratic Presidents. By contrast, here in the 7th Cir, we have 15 - only four of whom were appointed by Democratic Presidents. Of 22 in the 5th cir, five were appointed by Democratic Presidents. So its seems to follow that (a) Democratic Presidents are more likely to appoint liberal judges while Republican Presidents are more likely to appoint conservative Judges, (b) the greater the percentage of the active judges in a given circuit are Democratic appointees, the more likely that two of any three chosen at random will be Democratic nominees, therefore (c) if the 9th cir has a higher percentage of Democratic appointees than other circuits, it is more likely to lean left. Of course, I only glanced quickly at three circuits, so maybe most circuits are more like the 9th than the 7th and 5th.

Posted by: Simon | Jul 12, 2007 6:01:04 PM

Assuming for the moment that the Ninth Circuit really is being reversed more than other circuits in a statistically meaningful way, that doesn't necessarily suggest that they're doing a "bad" job. At the same time, I'm not sure I agree with some of the "ideological divergence" comments here: the Ninth Circuit's job is to faithfully apply SCt precedents, not serve as some sort of "counterbalance."

I think a better question would be what sort of reversals we're talking about. Are these reversals like State Oil v. Kahn, where Judge Posner wrote an opinion faithfully applying SCt precedent--as he's supposed to--and then asking the Court to reverse him? Are these reversals like Hein from this term, where the Court declines to extend the logic of a previous holding, so that a conscientious appeals court judge, if she agreed with Justice Scalia on the issue, would have properly extended taxpayer standing to executive expenditures (even if she didn't agree that there should be taxpayer standing in the first place!) and then been reversed? I think it matters a lot, and it's obviously very hard to code. Maybe, as a result, looking for 7-2 reversals (or more) is a better proxy?

Posted by: Alex | Jul 12, 2007 6:15:12 PM

S.cotus: Whatever the case, the op-ed was written by a non-lawyer who could not have read the cases and could not possibly have even understood the issues.

Byline at the very top of the op-ed: By Brian T. Fitzpatrick, BRIAN T. FITZPATRICK, a professor at Vanderbilt Law School, was a clerk on the 9th Circuit and the U.S. Supreme Court.

Posted by: John Tabin | Jul 13, 2007 3:21:37 AM

I agree with Alex, except never mind 7-2: the hugely disproportionate number of 9-0 reversals of the Ninth surely indicates something beyond mere failure to predict what Justice Kennedy had for breakfast the morning of a 5-4 decision. Even in Morse v. Frederick, all nine justices agreed the Ninth Circuit erroneously failed to follow well-established Supreme Court precedent on qualified immunity.

Posted by: Ted | Jul 13, 2007 4:19:56 AM

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