Advocates of splitting the U.S. Court of Appeals for the Ninth Circuit often point to the court's high reversal rate by the Supreme Court. An editorial in Monday's W$J, for instance, noted that the Ninth is 0-8 so far this Supreme Court term. Tallying the Justices' votes in cases reviewing Ninth Circuit decisions, the justices have gone against the Ninth 67-5.
Accepting that the Ninth Circuit appears to be out of step with the Supreme Court, the interesting question for researchers is why? Some think it is a partial consequence of the court being too big. With so many judges, and without full court en bancs, the argument goes, the Ninth is less able to maintain a coherent jurisprudence. Others argue it's just a question of ideology, and that the Ninth Circuit has more than its share of independent-minded judicial ideologues. Which, if either, of these is true? And would splitting the Ninth do anything about it?
Via Sara Benesh on the Empirical Legal Studies blog comes a study by Kevin Scott of the Congressional Research Service that suggests both size and ideology play a role in the Ninth's reversal rate.
This paper sorts out the cause of the Ninth Circuit’s reversal rate by looking at the Court’s relationship with the Supreme Court over the past twenty years. By looking at merits reversals, including unanimous reversals, and attempting a broader assessment of the Ninth Circuit’s status vis-à-vis the other circuits and the Supreme Court, I ultimately argue that both size (though indirectly) and ideological orientation influence the Ninth Circuit’s high reversal rate. These findings have broad implications for how we model the behavior of court of appeals judges and their relationship with the Supreme Court.Scott's ultimate conclusion, however, is that a proposed split "would likely not have the effect of reducing the frequency with which the two courts would be reversed by the Supreme Court. "If that is the case, the case for splitting the Ninth will have to be made on other grounds.
I remain somewhat inclined to favor splitting the Ninth on size grounds alone. As an outsider, the size of the Court seems particularly unwieldy, and I have knee-jerk reaction against less-then-full-court en banc panels. One problem with division proposals is that it is difficult (if not impossible) to address the size issue without splitting up California into more than one circuit. In any event, for those interested in this issue, Scott's paper provides some interesting food for thought.
That way, the 9th will be able to continue playing to its ideological brethren and the new circuit can be for the rest of us.
A bigger problem is that while he throws around the word "liberal" like it's going out of style, he doesn't seem to show how he determines who's a "liberal judge" and what's a "liberal decision." Does he include moderates? Does he think there are any? How are dissents and concurrences figured?
I support splitting the Ninth, as long as it can be done rationally and in a non-partisan fashion. I don't see any non-partisan reasons in this paper, though. I'll read it more carefully when I get a chance after work, and hopefully I'll see what I missed. So far, though, this seems like a political complaint dressed up as an academic analysis.
It's kind of like a kid arguing with his parents. The kid says "that's not fair," and the parents reply "We make the rules." The parents win, but that doesn't mean they're right.
Circuits now operate more like judicial fiefdoms and when these fiefdoms are in conflict sometimes it will take the Supreme Court a decade to correct it; that is if it is ever addresses the issue. This is especially troubling when it comes down to constitutional issues.
I think this could be corrected in a few ways. First, the Supreme Court needs to weigh in on more issues and be more proactive in settling circuit conflicts and cases that might seem to blur existing Supreme Court precedent. This could be done by expanding the docket or even making more of a use of PC opinions. A simple affirmation (even w/o an opinion) of a well written circuit decision would be enough to stop most of these conflicts from ever happening. This is how it was done is the 30's and 40's, but the court has since abandoned the practice completely.
Also, although I am not a giant fan of this plan, Congress should seriously think about establishing an appellate court for constitutional issues with national jurisdiction. I think that this is one area of the law where there should be no differences from circuit to circuit.
That may be true in some cases where there is no Supreme Court law prior to its reversal of the circuit's decision, but in cases where the Supreme Court has spoken and the 9th persists in sticking to its view thereafter, the 9th's decision can only be characterized as "wrong." The 9th's consistent refusal to properly apply the AEDPA standards in habeas, and the Supreme Court's significant number of summary reversals in these cases, provides a good illustration.
Should we then merge the present 11th Circuit with the Fifth again?
Again, I don't see that as proof that the Ninth is "wrong"--merely that they disagree with the Supremes as to the scope and meaning of the statute.
For example, it's possible, in the Ninth Circuit, to have a panel composed entirely of Carter appointees -- to say nothing of having at least 2 of them on a panel. I haven't checked other circuits, but I'd be surprised if that's possible anywhere else. Now, not that all Carter appointees are per se out of the mainstream, but it's safe to say that they are quite likely to have legal views, shaped from study and practice in the 1950s-70s, that are simply not commonly accepted anymore -- for example, it might explain why they view AEDPA as an affront to justice, and why they have certainly done what they can to reduce that law's impact. It would be like having Justice Brennan on today's Supreme Court -- not crazy, and perhaps very intelligent, but holding views that just don't carry much weight anymore.
I also add that because the Ninth Circuit includes California, which has its fair share of extremely liberal state judges, and circuit judges are often drawn from state judges (or district judges who used to be state judges), then even Clinton appointees in the Ninth Circuit will be more likely to be extremely liberal when compared to Clinton appointees in other circuits.
Putting all this together, the Ninth Circuit is more likely to have panels that, every now and then, through a confluence of (1) having an extremely liberal membership, and (2) addrssing an important issue, will issue a significant opinion that is just way out there, jurisprudentially speaking. And, accordingly, it's these opinions that are going to draw the attention of the Supreme Court and get reversed -- sometimes 9-0, sometimes 7-2, sometimes 5-4.
Of course, the Ninth Circuit's size also means you are more likely to see random panels of overly conservative panels, too. But overly "conservative" decisions, these days, are not going to be considered as far out of the mainstream as overly "liberal" decisions, in part because the judiciary, including the Supreme Court, has become more conservative over the past 25 years (compare, again, your average Clinton appointee to your average Carter appointee). Accordingly, fewer decisions issued by rock-solid conservative panels are going to be reversed than decisions by rock-solid liberal panels.
This is all based on my own intuition, but it would be interesting to compare the Ninth Circuit to, say, the First Circuit, which (to my knowledge) is the smallest circuit. There, it's just not very likely that you're ever going to randomly get a panel where two members, let alone three, are going to be significantly out of the jurisprudential mainstream. So I imagine that the First Circuit very rarely gets reversed, unless it's on a difficult question that is fairly characterized as having confounded all the circuits.
Really, the only solutions seem to be revising the circuit's en banc procedure and simply allowing some time for the last vestiges of the Carter administration to leave the bench.
However, why is it clear that this sort of disagreement with the supremes is bad? Isn't there a sorta federalism argument for legal theories. The 9th provides a testbed for some different legal theories which the supreme court can than examine or reject.
Why stop with the Ninth Circuit?
Why is it bad when district court judges in California ignore the Ninth Circuit? Why is it bad when FBI agents in California ignore the district court judges? Why is it bad when criminals ignore the police? All of these different behaviors create a sort of testbed, I suppose: They all create opportunities for new and creative social practices, right?
Nobody, that's not "proof" that they're wrong; that's the definition of being wrong.
Or, as one Justice said, "We're not final because we're right. We're right because we're final."
Further, I don't know whether these constitute a significant number of reversals, but reversals in cases taken under SCt Rule 16(c) cert. grants for exceptionally important and novel legal questions -- I'm thinking in particular of the Grokster case from a couple years ago -- might also be treated separately.
I agree that it's a question of ideology, but I disagree about which coast the ideologues are on.
Idaho and Montana, and maybe even Arizona and Nevada seem to have a lot in common with the 10th. Putting Oregon, Washington, Alaska and Hawaii in the 10th too would spread it out way too much. By themselves they would make an unviably small Circuit.
My preferred solution: put California and Nevada in a separate circuit (Nevada has a *lot* of California ties). Join Arizona (which would be cut off) to the 10th, and leave the rest as a rump 9th. Putting Hawaii with California and leaving the rest of the 9th together looks better on a map, but I don't think it gives as good a natural grouping of interests.
Clearly the problem is that California is too big. I say split the state itself. My first thought was Northern and Southern Cal since those areas don't like each other anyway. But that would probably give two extra dem senators, which wouldn't be politically palatable. So how about three new states - The Bay Area, LA area and the rest. That would probably give 2 nwe Repubs and two new Dems. It could work! :-)
Splitting the 9th on NoCal vs. SoCal grounds won't work. The Southern and Central Districts account for something like 2/3 of the cases appealed.
Splitting the "California Circuit" on NoCal vs. SoCal grounds won't work. The Southern and Central Districts account for something like 2/3 of the cases appealed.
"there is a procedure under which cases can be re-heard by the entire court. Such hearings are held in a handful of cases every year"
Wrong. It's NEVER happened and, to my knowledge, only once been even seriously considered (California Recall case).
OK, I'll go first, Stephen Reinhardt is an ideologue. I give him the respect due any federal judge, but if you do not think he is one then I would like your definition of the term.
My definition of "ideologue" would be: a judge who puts his or her personal beliefs and political opinions above the law in reaching legal conclusions.
As I have posted previously, I had a long-standing offer of a fine meal to anyone who could point to a pro-government habeas corpus decision in which Reinhardt merely sat on the panel and agreed with the majority. I have now seen one or two, but these opinions are still extraordinarily rare.
I have yet to see a single death penalty case where Judge Reinhardt voted to uphold both the conviction and sentence of someone on a 9th Circuit death row. Point to a single opinion and I will eat crow on this thread.
I understand that Judge Reinhardt is personally opposed to capital punishment. That is his right. But his duty is to uphold the law, even if it is a law he disagrees with.
So now, Mr. Hoffman it is your turn. Who is your candidate who can match Judge Reinhardt for ideological inflexibility on the east coast?
OK, let's look at the current term, which is only half over.
In Whorton v. Bockting, the Supreme Court unanimously held that the Ninth Circuit's opinion was wrong when it held that Crawford v. Washington was subject to Teague retroactivity in federal habeas corpus litigation.
In Weyerhauser Co. v. Ross Simmons Lumber Co., the Supreme Court unanimously vacated a ruling from the Ninth Circuit that applied the wrong standard in a predatory bidding case.
In Gonzales v. Duenas-Alvarez, 7 other members of the Court joined Justice Breyer's opinion and Justice Stevens concurred in the result. The Supreme Court held that the Ninth Circuit erred in holding that "aiding and abetting" was not included in the theft statute found at 8 U.S.C. 1101(a)(43)(G) allowing for alien deportation.
In Burton v. Stewart, the Court issued a unanimous per curiam opinion, finding that the gate-keeping function required for second habeas corpus petitions had not been followed by the Ninth Circuit.
In United States v. Resendiz-Ponce, the Court held in an 8-1 decision (Justice Scalia dissenting) that the Ninth Circuit erred in ruling that that an indictment's omission of a stated alleged overt act for illegally re-entering the country was not subject to harmless-error review.
In Carey v. Musladin, the Supreme Court unanimously held that there was no Constitutional violation when coutroom spectators wore buttons with the picture of the murder victim during the perpetrator's trial (5 Justices joined Justice Thomas's opinion, including both Justices Ginsberg and Breyer, Justices Stevens, Kennedy, and Souter wrote separate concurrence. At least 8 justices appear to agree(the majority and the Kennedy and Souter concurrences)that the statutory language in 28 U.S.C. 2254(d)(1): "clearly established federal law, as determined by the Supreme Court of the United States" does not mean "clearly established federal law, as established by the Supreme Court of the United States and as interpreted by the Ninth Circuit Court of Appeals."
In Ayers v. Belmontes, a 5-4 decision (Justice Kennedy, joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito), the Supreme Court held that the Ninth Circuit gave an unreasonable interpretation to California's "factor (k)" jury instruction on future dangerousness.
In Purcell v. Gonzalez, the Supreme Court issued a brief unanimous per curiam decision vacating a stay issued by a 2-judge Ninth Circuit motions panel that prevented Arizona from implementing a voter backed initiative requiring new voters to provide proof of citizenship when they registered to vote and positive identification at the polls. Out of fairness, I note that the Court expressed no opinion on the ultimate resolution of the dispute.
Akali, Please identify which the 2006-2007 decisions qualify for segregation under your model.
There are currently 27 active Judges on the Ninth Circuit and one vacancy. Based on where the judge keeps his or her principle chambers, 14 of these judges are Californians; 3 are from Arizona; 2 are from Nevada, Oregon, and Washington; and 1 each from Alaska, Montana, Hawaii, and Idaho.
I realize that Circuit Judges are free to relocate their chambers within the Circuit, even if the move is from one state to another. Judge Charles Wiggins did this. I do not know his reasoning but I suspect that Nevada's tax laws (no state income tax) somehow were part of his rationale, since neither his federal pension (he served several terms in Congress) nor his federal salary would then be subject to California's income tax.
However, when Judge Wiggins retired, he was succeeded by a Californian and not a Nevadan--Judge Carlos Bea.
More recently, Judge Stephen Trott took senior status. Judge Trott was originally from California but kept his chambers in Idaho.
President Bush nominated N. Randy Smith, an Idaho appellate judge, to replace Judge Trott. However, Senator Feinstein put a "hold" on Judge Smith's nomination--not because he was unqualified, but because Judge Trott's seat "belongs" to California.
The President ultimately withdrew Judge Smith's nomination for the Trott seat and nominated him for the seat previously held by Judge Thomas G. Nelson of Idaho instead. Senator Feinstein lifted her hold and Judge Smith was recently confirmed by a vote of 94-0.
To me a Circuit split to allow the other states to avoid "Californiacation" makes eminent sense. So that California is not a one-state circuit, I would reluctantly sacrifice Hawaii and the Pacific territorial islands to the "California" circuit--which I will allow to keep the Ninth Circuit monicker, with the new circuit dubbed the Twelfth.
To have to sacrifice Hawaii at all is unfortunate, but the territorial islands usually have their Ninth Circuit oral arguments heard in Honolulu.
I would note that based on the perceived "conservative" vs. "liberal" bias on my proposed circuit split, the Ninth Circuit would have 9 moderate to liberal judges and 7 moderate to conservative judges.
The Twelfth Circuit, by contrast, would have 8 moderate to liberal judges and 5 moderate to conservative judges.
My count was based exclusively on the President who nominated the judge, with the exception of Judge Richard Tallman of Washington, who was appointed by President Clinton but who votes more consistently with the Republican appointees than any other Carter or Clinton appointee.
Thus, assuming the Trott seat goes to a California Republican nominated by President Bush (no sure thing), the Ninth Circuit would likely be more conservative than the Twelfth Circuit.
Of course, for those conservatives who want to split the Ninth Circuit because of their ideological disagreement with its decisions, the old axiom--"Be careful what you wish for, because sometimes wishes come true"--comes to mind--because if they don't like the Ninth, they really aren't going to like the Twelfth.
i'm too tired to rattle off a number of examples, but one recent opinion comes to mind whether the 9th circuit held that omission of an element from an indictment can never be harmless error. the supreme court punted, saying that the element wasn't actually omitted, effectively reversing the 9th. but scalia sat out and would have affirmed the 9th's ruling.
i know that's just an anecdote and it's 2:45 in the morning, but trust me such unanticipated alignment on 9th circuit reversals is not as unusual as you might think.
there are other misleading elements about what's wrong with the 9th.
9 votes went agaisnt the 9th in Weyerhaueser, which was an antitrust case. the 9th declined to apply a predatory pricing test to a predatory bidding scheme. hardly evocative of the intense ideological split the material cited in the post seems to describe.
on the california DSL case, the 9th got overturned on a 6-3. it's an apprendi split, an issue that doesn't map well to ideological identification. in any event, it got supreme court votes from both sides (breyer and alito, i think).
the 9th got a 9-0 smack on bockting, the crawford retroactivity case. i mean other than apprendi, is there really a candidate other than crawford for fitting the teague exception? i don't understand the ninth circuit here, because although they might be right in principle, they know the court is never ever going to find a watershed teague exception. i don't know that holding crawford retroactive should inspire insinuations of incompetence.
the case i did really think the 9th fucked up was duenas-alverez, and that is ruling is more appropriately suspected to be ideologically motivated than some of the others. the court has a fairly straightforward test for determining whether state burglary offenses are covered when the term burglary is used as a state predicate in a federal statute. duenas-alverez's arguments were horrible.
they lost 5-4 on that samson parol case, which was just a very close issue. hardly fault in that.
that's not all, but they are all i can remember.
The 9th Circut has this problem in spades. California already dominates, in any split they would dominate even more. And the idea of splitting California leads to a nightmare in cases where the Court of Appeals has to decide a novel question of California law.
I certainly would approve of splitting California into multiple states. Likewise Texas, New York, Florida and some of the other larger states. That would begin to reduce the undemocratic nature of the Senate. And I'd say that the less populous states should combine (MT, ND, SD, WY, NH, VT) but hey, that's unconstitutional without their consent.
Texas has had that option since its admission to the Union, and every proposal to utilize that I'm aware of has been met with ridicule. (That's mostly editorials and letters to the editor, though. I'm not aware of any serious proposals.) Supposed advantages aside, people don't seem to like the idea of their states being broken up. Besides, an estimated 30% of Texans would have to get new belt buckles based on the shape of their new state. And who would get Austin, and who would get stuck with Houston?
I tend to agree with your analysis that Weyerhauser was not ideological.
I think another sign of frustration among the more conservative members of the Ninth are the long, sometimes angry dissents from the denial of a petition for rehearing en banc. Judges O'Scannlain, Kleinfeld, Tallman, Bybee, Bea, and Callahan appear most often, though other judges sometimes join them and these individual judges sometimes don't join these dissents.
These dissents demonstrate some deep ideological tension among the members of the Ninth Circuit, and seem designed specifically to push a case forward for Supreme Court review.
In fact, it was because of his willingness to join (and sometimes write) these dissents that I specifically counted Judge Tallman as a moderate to conservative judge in my prior post, despite the fact he was appointed by President Clinton.
I should note that some of the more conservative members of the Ninth Circuit never join in the dissent from the denial of a petition for rehearing en banc, Judge Rhymer comes immediately to mind in that regard, as does Judge Clifton.