Ninth Circuit Judges on Supreme Court Reversal:
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."
Personally, I think the increased rate might be attributable to the 9th Circuit Judges' practice of regularly dissenting from denial of rehearing en banc and forcefully making the case that the panel has strayed from the holdings of other circuits. A judge's de facto petition for certiorari certainly helps when an advocate wants to write the actual petition.
It's most likely a couple of judges that are on the circuit that just really dont' care about Supreme Court precedent which are the ones getting summarily reversed, e.g. Reinhardt.
Although, I don't think that the fact that three were issued in one day is particularly significant. You should look term to term. One of the judges at the Boalt Ninth Circuit day actually said the 5th Circuit had more summary reversals than the Ninth.
In regard to oral argument I would think that 1 in 10 at the CA level would drop substantially by the time SCOTUS gets ahold of a case. The record is more developed by then.
There may be something to this, but there's a chicken or the egg problem with this explanation--some of the Ninth's opinions are so in tension with Supreme Court authority that a dissent for denial en banc is inevitable (and easy). The unanimous summary reversals seem to back this up.
More like the idiots.
In other words, I don't think the relevant statistic is the court's overall "error rate" (especially with the Cert. process being what it is); I think that the relevant statistic is how well each lower court does upon further review. To put it another way, do you think that the 9th's error rate would go down significantly if SCOTUS could and did decide 10x as many cases each term?
That the 9th is so frequently reviewed, so frequently reversed, (and not typically by the 5-4 margins) is what is telling.
That the 9th is so frequently reviewed, so frequently reversed, (and not typically by the 5-4 margins) is what is telling.
They have about 10 times as many cases as other circuits. You're telling me that's irrelevant? Prof. Solove is right. The appropriate measure is the % of reversals. It's still higher than the average, but not Dennis Rodman high.
Wouldn't the most telling statistic be the relative rate of being overturned by wide margins?
For example, Circuit A is overturned 50% of the time, but it is almost always by a 5-4 margin. This would suggest a philosophical or ideological mismatch.
Then, Circuit B is overturned 30 % of the time, but almost always 9-0 or 8-1. That suggest much deeper divide between the Circuit and the Supreme Court.
I really have no idea of the statistics, so I have no idea if the 9th Circuit is in anyway like either hypothetical.
For OT2004 16 of 19 cases were reversed, an 84% rate, while the 1st, 2d, and 3d Circuits each had a 100% rate with 2 or 3 cases each. 119 Harv. L. Rev. 415, 427 (2005). The Fifth was reversed in 5 of 7 cases that year, a 71% rate, while the overall reversal rate was
51/70 or 72%. Id.
First, it often occurs that the Ninth Circuit creates a split but that its decision is a bad vehicle for review (whether inadvertently or by design). The Supreme Court will end up taking a case from another circuit in the split, and the case won't be recorded as a Ninth Circuit reversal.
Second, there's the interesting question of what to do when the Ninth Circuit gets one wrong, the Court grants cert, and then the Supreme Court decides to change or misapply the law so that it agrees with the Ninth Circuit's view. See, e.g., Groh v. Ramirez. Does that mean the Ninth Circuit was right, or that it was wrong but the Supreme Court was willing to fudge, too?
Third, former Ninth Circuit clerks often say that the Ninth Circuit does its most creative work in unpublished opinions. The Supreme Court rarely reviews unpublished decisions, which means that those cases are not reversed even if they're pretty out there.
Among judges or lawyers with any pretensions of following the law, this would be embarassing, and not admitted to in public.
Why should any of us bother telling clients to follow the law, if the law is merely what some fatuous, cranky old lawyer says it is? And how can we actually predict what it is, when judges take so much joy in perverting it?
Having lived in some countries where everybody involved in the legal process treats the law like a product to be bought or captured at gunpoint, I'm constantly amazed that so many people in the West champion this approach. Can't people see where this political tactic takes the law? Once you nullify the common agreement to have a decent reverence for the text, respect for the rule of law disappears and ownership of the "law" itself becomes a power struggle, rather than the means of mitigating and arbitraging power struggles and other disagreements.
The Supreme Court obviously would be the "Showtime" Lakers...they always win.
(1) "bad boys" was clearly facetious, and
(2) I would assume that Judge Thomas means that, within the set of difficult cases on which reasonable people who know the law can disagree, the Ninth Circuit's tendencies may be the furthest from the Supreme Court's. Judge Reinhardt had this to say in an interview once about the mismatch between the CA9 and the Supremes:
Obviously, those comments don't account for every single CA9 reversal. Further, the comments themselves are eminently debatable. But if you believe, as I do, that the comments were made in good faith, then the comments provide some context to the "bad boy" reference and suggest why a judge might be proud of being out of step with the Supreme Court on occasion without shirking his responsibility to follow and apply the law.
Can you think of any examples in which Judge Reinhardt properly applied then-existing law but then the Supreme Court changed the law to reverse him? Off the top of my head, I can't.
In the previous Supreme Court term, there were 23 cases where the lower court was reversed unanimously or with a lone dissent. Eleven of those were from the Ninth Circuit. Even considering its size and caseload, that is a disproportionate share. More on this here.
Can you think of substantial number of Reinhardt reversals off the top of your head? Maybe you're better at remembering those details that I am.
Off the top of my head, I can't either. Nor can I with a cursory search. I imagine he's referring to cases decided in the late 80s or early 90s, but no specifics come to mind.
Yeah, even the Bad Boy Pistons got lucky once in a while. But the analogy is simple. Those are the issues where the 9th will win eventually when Obama wins, makes all his S.Ct. appointments from the 9th, and the S.Ct. over-rules itself. Rare, but sweet when it happens.
Which of the five conservatives do you think are going to retire in the next four years? Perhaps Kennedy. Roberts, Scalia, Thomas, and Alito are in for the long haul.
And you don't think there'll be enough Republican senators to filibuster?
2) A Democratic president will probably have to wait until a second term before Scalia or Thomas are close to leaving the Court. Within a first term, Stevens &Ginsberg at least will retire so that they can feel comforted with a Democratic appointee to replace them.
From the post:
Of course, we now face the danger of having appointments for the next four years made by a president who is not only a Democrat but from the lefter* wing of that party, unchecked by a Senate in control of the same party. The modest progress that has been made toward returning to the mainstream could be reversed.
*See Eugene's post of 2:26 a.m. today.
Yes, the attorney was seriously making that argument.