The Volokh Conspiracy - Would a Smaller Ninth Circuit Get Reversed Less Often?

Vanderbilt law professor Brian Fitzpatrick looks at the U.S. Court of Appeals for the Ninth Circuit (where he clerked), and how it fared before the Supreme Court this past year.

The 9th Circuit, which hears appeals in federal cases in the Western United States, is the largest of the 13 such courts, with 28 active judges and more than 20 part-time senior judges. The 9th Circuit is almost three times the size of an average court of appeals, and its jurisdiction stretches from Alaska to Arizona, an area comprising nearly one-fifth of the American population.

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.

Noting the Ninth Circuit's high rate of reversal is nothing new. What Fitzpatrick adds, however, is an explanation of how the Ninth Circuit's large size may contribute to the high reversal rate. Specifically, he argues that as the number of judges on the Ninth Circuit increases, the likelihood that it will issue outlier opinions increases.

Consider a hypothetical court of 28 judges (the number of active judges currently on the 9th Circuit), in which six of the judges are extreme. The probability of such a court randomly selecting a panel with at least two extreme judges is almost 11%. But if it were divided into two courts — each with 14 judges, three of whom are extreme — that probability falls to 9%.

A difference of 1% or 2% may not seem like much, but the 9th Circuit decides more than 6,000 cases every year. This means that if the 9th Circuit is anything like my hypothetical court, splitting it in half would save 60 to 120 appeals a year from being decided by panels with a majority of extreme judges.

On this basis, Fitzpatrick concludes that as long as the Ninth Circuit remains disproportionately large, it will continue to issue "extreme" opinions at a disproportionate rate, and "it is likely to continue being disproportionately reversed by the Supreme Court."

	[Jonathan Adler, July 11, 2007 at 9:12pm] Trackbacks Would a Smaller Ninth Circuit Get Reversed Less Often? Vanderbilt law professor Brian Fitzpatrick looks at the U.S. Court of Appeals for the Ninth Circuit (where he clerked), and how it fared before the Supreme Court this past year. The 9th Circuit, which hears appeals in federal cases in the Western United States, is the largest of the 13 such courts, with 28 active judges and more than 20 part-time senior judges. The 9th Circuit is almost three times the size of an average court of appeals, and its jurisdiction stretches from Alaska to Arizona, an area comprising nearly one-fifth of the American population. 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. Noting the Ninth Circuit's high rate of reversal is nothing new. What Fitzpatrick adds, however, is an explanation of how the Ninth Circuit's large size may contribute to the high reversal rate. Specifically, he argues that as the number of judges on the Ninth Circuit increases, the likelihood that it will issue outlier opinions increases. Consider a hypothetical court of 28 judges (the number of active judges currently on the 9th Circuit), in which six of the judges are extreme. The probability of such a court randomly selecting a panel with at least two extreme judges is almost 11%. But if it were divided into two courts — each with 14 judges, three of whom are extreme — that probability falls to 9%. A difference of 1% or 2% may not seem like much, but the 9th Circuit decides more than 6,000 cases every year. This means that if the 9th Circuit is anything like my hypothetical court, splitting it in half would save 60 to 120 appeals a year from being decided by panels with a majority of extreme judges. On this basis, Fitzpatrick concludes that as long as the Ninth Circuit remains disproportionately large, it will continue to issue "extreme" opinions at a disproportionate rate, and "it is likely to continue being disproportionately reversed by the Supreme Court." Related Posts (on one page): Ninth Circuit Judges Wary of Split: Justice Stevens on the Ninth Circuit: In Defense of the Ninth Circuit: Is Splitting the Ninth the Answer? (What Was the Question?): Would a Smaller Ninth Circuit Get Reversed Less Often?