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 `pageok` [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? (link) frankcross (mail): Isn't the calculation an artifact of the arbitrary assumption that the six judges are divided equally? Suppose all six ended up in one of the fourteen member circuits. Then nearly 50% of the panels in that circuit would have two extreme judges. 7.11.2007 10:36pm (link) John (mail): i'd think that if the ninth circuit were split up, each half would grow larger, further reducing the likelihood of "extreme" judges being on the same panel. 7.11.2007 10:42pm (link) Reinhardt: Rather than splitting the Circuit, why not just impeach the extreme judges, that would save everyone a lot of time, effort and grief. 7.11.2007 11:38pm (link) extern: When I was a federal court extern last year during law school, the answer from the judges was, yes, the circuit should be split. However, I was in Idaho, and many Ninth opinions are not too popular there. 7.11.2007 11:45pm (link) Blar (mail) (www): Frankcross is absolutely right. If the judges were randomly divided between the two new courts, then the expected proportion of majority-extreme panels would be exactly the same as the proportion for the original court. Randomly choosing 14 and then randomly choosing 3 of the 14 is no different from just randomly choosing 3 in the first place. The law of large numbers actually works contrary to Fitzpatrick's logic. If overturned cases are due to a handful of extreme judges which are randomly sprinkled throughout the 13 courts, then we would expect the smaller courts to be most variable in terms of the proportion of overturned cases, with some small courts being the most-reversed (if they happen to get more than their share of extremes) and others being the least-reversed (if they happen to get less than their share). Larger courts would tend to have closer to the average (mean) rate of reversals, since with so many judges it is unlikely for them to have much more or much less than the average proportion of extreme judges. That's not how the data look, which means that there's something wrong with Fitzpatrick's model of the cause of reversals. 7.12.2007 12:02am (link) Edward A. Hoffman (mail): The problem with this analysis is that the extremists are on the Supreme Court, not the Ninth Circuit. If we had moderates (even generally conservative moderates) in their place the Ninth Circuit's reversal rate would fall dramatically, and the reversal rates of the other circuits would rise. 7.12.2007 1:11am (link) c.f.w. (mail): Why have circuits at all any more? Just have panels (and en banc panels) selected randomly nationwide. Make the blues work with the reds. Learning state law as needed is not that hard anymore, with electronic research, and travel to other states to hear argument would be a plus not a minus. If truly stumped by state law issues, just send the question to the state court (certify the question) or call for special briefing on the state law question. 7.12.2007 9:48am (link) Clint: If one could identify the judges whose opinions are so much more likely to be "incorrectly" decided (which frankcross correctly notes is absolutely necessary to getting any benefit from dividing the circuit) then wouldn't it make more sense simply to remove those judges, or at least to assign them to less "strenuous" duty? Surely six judges being responsible for something like twenty-five times as many overturned decisions as the average judge on the second-worst Circuit could be considered evidence of incompetence? (Factor of 5x from the post, additional 5x since it's postulated to be a fifth of the judges causing the problem 6 of 28.) Also, on a math note, continuing the division into six sub-circuits, each with four or five judges only one of them extreme, would guarantee never convening a panel with a majority of two extreme judges, and solve the problem completely. 7.12.2007 9:55am (link) TerrencePhilip: The telling issue with the 9th is the high number of UNANIMOUS reversals by the supreme court- that is how you can tell they are out of step with the Supreme Court's idea of what the law is. Yet without knowing who the judges are most likely to step outside the bounds, you can't say that splitting the court will lead to more conformity. If as I suspect, the most nonconformist judges are from California (i.e. Reinhardt, Pregerson), then you would be creating a circuit including California that could have just as high a reversal rate if not higher; and a conservative circuit elsewhere. There may be other good reasons to support splitting the 9th, such as administrative problems inherent in its size, but I haven't seen the "fewer reversals" argument justified yet. 7.12.2007 10:25am (link) Temp Guest (mail): The problem with this analysis is that the extremists are on the Supreme Court, not the Ninth Circuit But, as another poster pointed out, reversals of 9th Circuit opinions are often unanimous and, furthermore, the history of this pattern stretches back into a period when the Supreme Court had a far more liberal makeup. However, I was in Idaho, and many Ninth opinions are not too popular there. My impression is that the more radical (reversed on appeal / vacated) 9th Circuit decisions usually involve panels of judges based in California, Oregon, and maybe Washington. I suspect that if the Circuit were split into three or four circuits and one were to comprise these three states, the left coast circuit would continue to produce wacky opinions and the other circuits would be more moderate. 7.12.2007 11:00am (link) blackdoggerel (mail): Several commenters have already, and correctly, pointed out that it's not just the comparably high rate of reversal in Ninth Circuit opinions that is troubling, it's the unanimity with which SCOTUS reverses it (or, on occasion, 8-1 or 7-2). If you look at the Fifth Circuit reversals from this past Term, if I'm not mistaken, all of them were 5-4 cases, which at least suggests that the decisions below were not completely out line with all of the current Justices' thinking. What is also telling, though, is the range of issues on which the Ninth Circuit has been reversed. Again, if you look at the Fifth Circuit from this past Term, I believe all of the reversals were in death penalty cases, and many were in the Penry line of cases. Not only is this is a very narrow, specialized area of law, but anyone who follows SCOTUS knows that death penalty cases are viewed and treated differently (for better or for worse) than other cases. Moreover, the Penry cases are an extraordinarily narrow line of cases dealing with the same set of jury instructions from 20 years ago, and they are cases that have almost no meaningful impact going forward. The Ninth Circuit reversals from this past Term, however, cover a broad spectrum of the law: Fourth Amendment, ERISA, environmental law, Fair Credit Reporting Act, bankruptcy, criminal law retroactivity, AEDPA "clearly established" law, and even removal jurisdiction, for crying out loud. That the Ninth Circuit got so many decisions wrong (in SCOTUS's view) in so many areas is what's especially troubling. 7.12.2007 12:20pm (link) Erasmus- (mail): Let me follow the logic. We should split the Ninth Circuit -- incurring huge numbers of administrative costs and against the wishes of a majority of the Ninth Circuit judges themselves -- because the Supreme Court reverses a tiny number of their cases in any given year. If we had a very liberal supreme court (i.e., a majoirty of the court were brennan clones) instead of a very conservative supreme court, would we be talking about splitting the 4th and 5th circuits because of their large numbers of reversals? 7.12.2007 12:44pm (link) Bretzky (mail): Would it be possible simply to increase the panel size of an appellate hearing from the current three to a percentage of the total number of judges sitting on a Circuit Court? Maybe the panel could include say, around a third of the judges on the court, which would mean a nine-judge hearing for the Ninth, a five-judge panel for the Sixth, etc., with a minimum of three judges. This might get rid of the tyranny of the outlier minority opinions. 7.12.2007 1:31pm (link) Gordo: The Ninth Circuit should be split - anyone who isn't a liberal partisan hack realizes that this should happen. My question is: why hasn't it? The Republicans had control over both Houses of Congress and the Presidency for four years. 7.12.2007 1:42pm (link) Dave N (mail): The one issue not discussed so far is that judges' seats (in all circuit courts) are unofficially assigned to various states. based on size. This became rather public when Judge R. Randy Smith was confirmed. President Bush originally nominated Judge Smith (who was an Idaho appellate judge) to the seat vacated by Judge Stephen Trott--who took Senior Status. Senator Diane Feinstein put a "hold" on Judge Smith's nomination, blocking his confirmation. Senator Feinstein argued that the Trott seat was a "California" seat, even though Judge Trott keeps his chambers in Boise, and should be filled by a Californian. President Bush subsequently withdrew Judge Smith's nomination for the Trott seat and instead nominated him for the seat previously held by Judge Thomas Nelson (also from Idaho), who had also taken senior status. When the President shifted Judge Smith's nomination to the Nelson seat, the Senate unanimously confirmed him. As a result, it appears logical that if the Ninth Circuit is ever split, the judges on the circuit will likely "split" based on where their chambers are located. 7.12.2007 1:51pm (link) Dave N (mail): I realize I should have cited my previous post. I am adding a link to Senator Feinstein's website regarding the Smith issue. 7.12.2007 1:54pm (link) Dave N (mail): Oh--for those who are wondering, the bulk of the Ninth Circuit Judges are Californians. The following active judges maintain chambers outside of California: Chief Judge Schroeder (Arizona); Judge O'Scainlain (Oregon); Judge Kleinfeld (Alaska); Judge Hawkins (Arizona); Judge Thomas (Montana); Judge Silverman (Arizona); Judge Graber (Oregon); Judge Gould (Washington); Judge Tallman (Washington); Judge Rawlinson (Nevada); Judge Clifton (Hawaii); Judge Bybee (Nevada); and Judge Randy Smith (Idaho). Assuming that any circuit split would likely include adding at least one state besides California--and that the most logical state to include would be Hawaii--this new "12th Circuit" would still have at least two of the more reliably liberal judges on it--Judges Schroeder and Thomas--though neither of the liberal icons on the 9th Circuit--Judges Pregerson and Reinhardt--would be part of it. 7.12.2007 2:09pm (link) TerrencePhilip: A relevant bit of research would be to compare today's controversy to the discussion that led to the Eleventh Circuit being torn from the rib of the Fifth. 7.12.2007 2:11pm (link) theobromophile (www): My impression is that the more radical (reversed on appeal / vacated) 9th Circuit decisions usually involve panels of judges based in California, Oregon, and maybe Washington. I suspect that if the Circuit were split into three or four circuits and one were to comprise these three states, the left coast circuit would continue to produce wacky opinions and the other circuits would be more moderate. Numerically, if I recall correctly, the Ninth could be divided into 1) California and 2) all the other states. The California circuit would still be the largest in the country (either in terms of the number of judges, cases, or the population it covers - very sorry that I don't remember which at the moment). We should split the Ninth Circuit -- incurring huge numbers of administrative costs and against the wishes of a majority of the Ninth Circuit judges themselves -- Doesn't the Ninth have some special administrative system that makes it incredibly efficient? 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. Now, I'm not going to argue that the Ninth does not produce some wacky jurisprudence, but isn't there a question about whether or not this is statistically significant? 19/22 is 87%; 4/5 is 80%. How significant is that 7% when compared with the Fifth, which has only five data points? Moreover, does "busiest" mean "second-most frequently overturned" or does it mean "most cases reviewed by the S. Ct.?" 7.12.2007 2:15pm (link) KeithK (mail): Let me follow the logic. We should split the Ninth Circuit ... because the Supreme Court reverses a tiny number of their cases in any given year. It seems to me that the extreme size of the Ninth Circuit is the real reason some want to split the circuit. There's a concern that the size makes a coherent jurisprudence difficult, especially with en banc courts that don't include all judges in the circuit. But it's hard to quantify this effect. It's easier to grab the readily available evidence and use it to support the circuit split argument. 7.12.2007 2:32pm (link) c.f.w. (mail): Also, if the Senate was reformed to proportional representation (one person one vote for Senate as well as House), 9th would, in due course, be the new 5th or 4th in terms of consistency with USSCT ideas. 7.12.2007 2:57pm (link) Crunchy Frog: Dave N hit the nail on the head, albeit indirectly. As most seats on the 9th are based in California, that means the majority of the nominations for the 9th have to pass muster with Dianne Feinstein (who is liberal, but has a brain) and Barbara Boxer (who does not). The practice of allowing a single Senator to torpedo nominations has got to stop. 7.12.2007 3:36pm (link) Dave N (mail): Crunchy Frog, You are right on with your analysis. Adding to Senator Feinstein's power is her membership on the Senate Judiciary Committee. During the Confirmation Wars, the Democrats clearly stated that if one Democratic member of the Judiciary Committee voted for confirmation, they would not filibuster. Currently there is only one open seat on the 9th Circuit (Judge Trott's). In at least partial defense of Senator Feinstein, she has allowed seven Bush nominees for the 9th Circuit to be confirmed--including four from California--where she apparently has a double veto. 7.12.2007 3:47pm (link) blackdoggerel (mail): Where have I seen this argument made before? Oh, that's right, on this site, about four months ago:The Ninth Circuit's high reversal rate appears, I think, to be tied directly to its size, for the following reason. The more judges in a circuit, the greater the chances that a 3-judge panel will be composed of "outlier" judges -- judges whose views on law and policy are removed from the mainstream or, at least, the prevailing views at the Supreme Court (none of whose members can fairly be deemed "outlier" judges). 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. That's from a comment I posted in reponse to a post by Prof. Adler on March 15 of this year. Great minds think alike, apparently... Guess I should start writing op-eds, too. 7.12.2007 4:01pm (link) Dave N (mail): Blackdoggeral, How do we know you really aren't really Brian Fitzpatrick? (Just teasing) 7.12.2007 5:20pm (link) Syd Henderson (mail): 19 out of 22 seems like a lot, but 19 out of 6000 doesn't. How does the "more than 6000 cases" decided compare with other courts? 7.13.2007 6:56pm `pageok` `pageok`