The Volokh Conspiracy - What's Wrong with the Ninth Circuit?

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.

	[Jonathan Adler, March 15, 2007 at 8:28am] Trackbacks What's Wrong with the Ninth Circuit? 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.