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In Defense of the Ninth Circuit:

Richmond attorney Cullen Seltzer rises to the defense of U.S. Court of Appeals for the Ninth Circuit in Slate:

As proof of the 9th's judicial failings, the critics generally stress the court's extra-high rate of review and reversal by the Supreme Court. The numbers, though, tell a less damning story than the alarmist portrayals of the court. . . .

yes, 9th Circuit cases were disproportionately represented in the Supreme Court. Since caseload and population would predict a review rate of 18 percent to 20 percent, the justices heard between one and a half times and twice as many cases from the 9th as would have been expected. But because the Supreme Court's docket is small, the number of "extra" cases from the 9th is also small: nine for the last term. That's a substantial part of the Supreme Court's docket, which totaled 73 cases last year, 64 of them from the federal courts of appeals. But nine cases represents only 0.1 percent of the 9th Circuit's 6,387 on-the-merits decisions for the 12 months ending in September of 2006. That's a fair measure of judges going nutty only if you think that 0.1 percent is statistically interesting. . . .

let's look at how often the Supreme Court decides that the 9th got it wrong. Last term, the Supreme Court's reversal rate for 9th Circuit cases was 90.5 percent. Yikes—that's huge! But wait, for on-the-merits cases, the Supremes reversed the 3rd and 5th Circuits all of the time last term. Cases from state appellate courts fared no better: They also had a 100 percent reversal rate. Overall, this past term the Supreme Court reversed 75.3 percent of the cases they considered on their merits. The pattern holds true for the 2004 and 2005 terms as well, when the Supremes had overall reversal rates of 76.8 percent and 75.6 percent, respectively. For those years, the 9th was reversed 84 percent and 88.9 percent of the time, or about a case or two more each year than it would have been if it had conformed to the reversal rate of the other circuits. How do one or two cases a year add up to a court run amuck?

It's also not necessarily the case that a higher reversal rate by the Supreme Court means that an appeals court is doing a bad job. The lower court judges may be bad at predicting what the Supreme Court will approve or disapprove. Or they may not care: They may want to test an idea or take a stance that's at odds with the current direction of the Supreme Court. Or they may perceive that existing law, as previously dictated by their own circuit or by earlier Supreme Court decisions, requires a certain outcome, even as they understand the justice may change that law if they take the case for review.

(LvHB)

anonVCfan:
He sounds like he's fishing.

I wonder if some of the the Ninth Circuit judges who are more out of step with the Supreme Court might simply be more candid about how they got from the facts to the result. Whatever one thinks of Judge Reinhardt, he explains his results well, the Supremes can tell precisely where he went "wrong," and are are therefore more likely to grant cert.

Another judge might do the same thing but hide the ball a bit more.

Obviously, in a perfect world, Judge Reinhardt would follow the law and all judges would write candid opinions in smooth, terse prose.

But in our world, I wonder if the Ninth Circuit gets reviewed and reversed more often because of its candor and if so, I respect the judges all the more for not responding to reversals by hiding the ball.
7.16.2007 10:31pm
dre (mail):
"It's also not necessarily the case that a higher reversal rate by the Supreme Court means that an appeals court is doing a bad job. The lower court judges may be bad at predicting what the Supreme Court will approve or disapprove. Or they may not care: They may want to test an idea or take a stance that's at odds with the current direction of the Supreme Court. Or they may perceive that existing law, as previously dictated by their own circuit or by earlier Supreme Court decisions, requires a certain outcome, even as they understand the justice may change that law if they take the case for review."

Or it could be that the 9th is mostly made up of hippies/leftists/anarchists turned lawyers. Keep defending the indefensible.
7.16.2007 10:43pm
Reg (mail):

"It's also not necessarily the case that a higher reversal rate by the Supreme Court means that an appeals court is doing a bad job. The lower court judges may be bad at predicting what the Supreme Court will approve or disapprove. Or they may not care: They may want to test an idea or take a stance that's at odds with the current direction of the Supreme Court.


This is the definition of a bad job: failing to predict what the higher court will do or ignoring the higher court's law. How the heck does the author define a bad job?


Or they may perceive that existing law, as previously dictated by their own circuit or by earlier Supreme Court decisions, requires a certain outcome, even as they understand the justice may change that law if they take the case for review."


This shouldn't be any more difficult for any other circuit.

The 9th's reputation is due in part to the number of times it is reversed 9-0, or 7-2, which seems to be much more than any other circuit. (though this is based on my impression, not research)

Thoroughly unpersuasive.
7.16.2007 10:49pm
BruceM (mail) (www):
You also have to take into account how often the 9th circuit is implicitly affirmed when ANOTHER circuit with which the 9th is in agreement is affirmed (implicitly affirming the 9th) or conversely when another circuit with which the 9th is in disagreement is reversed (implicitly affirming the 9th). Looking solely at the cases where the SCOTUS grants certiorari to the 9th circuit and subsequently reverses is only looking at half the story. I wish I could find the darn article I read (i woulda sworn it was either here or over at SCOTUSblog) which examined these factors and determined that when you take into account the implicit affirmations of the 9th circuit by the SCOTUS in affirming others circuits with which the 9th agrees or reversing other circuits with which the 9th disagrees, the 9th circuit is reversed about as much as all the other federal circuit courts.

Whenever there is a circuit split, and the SCOTUS resolves it by affirming or reversing one case out of one court, all the circuits on the losing side of the split are implicitly reversed. If the 9th circuit and 7th circuit agree on an issue and all the other courts have gone the other way, and the SCOTUS reverses the 9th circuit, the 7th is reversed too. The converse of that is true as well. So it's bad logic and bad data to only focus on how many times the SCOTUS directly reverses any one court. It's fun, it makes a lot of people feel good, but it's irrelevant without considering the implied affirmations/reversals when other circuits are affirmed/reversed.
7.16.2007 10:54pm
dre (mail):
"Whenever there is a circuit split, and the SCOTUS resolves it by affirming or reversing one case out of one court, all the circuits on the losing side of the split are implicitly reversed. If the 9th circuit and 7th circuit agree on an issue and all the other courts have gone the other way, and the SCOTUS reverses the 9th circuit, the 7th is reversed too."

Or too many idiot judges in the land.
7.16.2007 11:04pm
paul lukasiak (mail):
no one seems to have considered the possibility that all these reversals are indicative of a Supreme Court that is "activist" in ignoring precedent (or decisions that can be rationally derived from existing precendent).
7.16.2007 11:15pm
U.Va. 2L:
This is the definition of a bad job: failing to predict what the higher court will do

This doesn't account for the possibility that the Ninth Circuit is reaching the right decisions, and the Supreme Court is the one actually screwing up. After all, appellate judging (as I understand it, anyway) is supposed to be about correctly stating the law and applying it to the facts at hand, not predicting what the next court up the chain will do on review. Which leads to the next point...

or ignoring the higher court's law

This, on the other hand, actually is the court doing a bad job, IMO. I haven't followed this closely enough, though--how often does the Ninth Circuit actually ignore precedent, as opposed to making a defensible, if questionable, reading of precedent?
7.17.2007 12:03am
Reg (mail):

appellate judging (as I understand it, anyway) is supposed to be about correctly stating the law and applying it to the facts at hand, not predicting what the next court up the chain will do on review


On open questions, where no SC precedent binds, stating what the law is includes looking at what the higher court has said in its general statements and on similar issues, in effect predicting what the higher court will do.

You are correct insofar as where SC has precedent, a circuit court does not, and cannot, make a prediction that SC will overrule precedent and reverse itself.
7.17.2007 12:12am
Reg (mail):

how often does the Ninth Circuit actually ignore precedent, as opposed to making a defensible, if questionable, reading of precedent?


I summarized the author's statement that "They may want to test an idea or take a stance that's at odds with the current direction of the Supreme Court" as ignoring SC law.

To respond to your question, if a court throws out an interpretation that can't get a single vote on the SC, it seems pretty likely that the court has ignored the law. That seems to happen often with the 9th.
7.17.2007 12:16am
John McCall (mail):
For most of the country, Richmond is in Virginia, not California.
7.17.2007 3:03am
blackdoggerel (mail):
Oh brother. Where to begin?

1. "SCOTUS reversed the Third Circuit 100% of the time last Term." There was one case from the Third Circuit last term. Nice sample size.

2. "SCOTUS reversed the Fifth Circuit 100% of the time last Term." There were, I think, three Fifth Circuit cases last Term. All were death penalty cases, and all but one were Penry cases (to the uninitiated, that's a very narrow line of very esoteric law that has almost no impact beyond the specific cases). All were 5-4 decisions.

3. With respect to Ninth Circuit cases, however: (1) there were close to a dozen cases; (2) almost all were reversed; (3) almost none were reversed 5-4, and a significant number were 9-0; (4) some didn't even make it to the merits -- they were thrown out for other errors by the Ninth Circuit (Burton, Resendiz-Ponce); and (5) the reversals ran the gamut of law -- bankruptcy, ERISA, habeas review, habeas retroactivity, Fair Credit Reporting Act, environmental law, constitutional law, removal jurisdiction, the list goes on.

In other words, the Ninth Circuit's errors weren't just confined to one narrow area of law; they weren't just areas of disagreement among reasonable jurists; and they weren't small in number. That is not a promising sign for any lower court.
7.17.2007 3:32am
Christopher:
That article was actually fairly convincing, I thought. At least, that is, until it got to the last paragraph. Trying to maintain that a court has not run amuck by explaining its reversal rate as a situation in which the judges "may not care [about previous SC precedent]" and may want "to take a stance that's at odds with the current direction of the Supreme Court" is the worst non sequitur I've ever heard. He should have stuck to the numerical analysis and left this editorial junk out of it all together.
7.17.2007 3:41am
Larry Fafarman (mail) (www):
A high reversal rate is to be expected. One of the Supreme Court justices' main reasons for granting certiorari is that a decision looks questionable to them. A minimum of four justices -- a near majority of the court -- is required to grant certiorari, meaning that when certiorari is granted, at least a near majority of the court is likely to be leaning towards reversal even before the court hears the case.
7.17.2007 4:14am
Public_Defender (mail):
What tough standards. The excess reversals of the 9th Circuit account for only 0.1% of that circuit's decisions. That's a "high reversal rate"? Pick the worst 0.1% of anyone's work and you can make them look like a fool.

As to the 5-4 decisions reversing the Fifth Circuit's stubborn refusal to follow Penry versus the unanimous reversals of the Ninth, that shows the intellectual honesty of the SCOTUS liberals more than the unreasonableness of the Ninth Circuit judges.

Admittedly, lower court judges do try to push the law and to wiggle free of precedent they don't like or that they think would produce an unjust result. And conservative judges are no different. The Fifth Circuit judges didn't like Penry, so they refused to apply it hoping that SCOTUS would look the other way or change its mind. Remember when the Fourth Circuit decided that it could overturn Miranda?

When applying precedent, judges frequently push or exceed the limits in order to avoid what they see as unjust results. I have a client for whom existing precedent says that defects in his plea process allow him to undo a ten-year-old plea and force a trial (for which the prosecutor may or may not be able to recover any evidence). But I know that he's ****ing with the system, and when you **** with the system, the system looks for ways to make you lose.

Yes, it's annoying when judges don't apply precedent as written. But virtually all judges (conservatives and liberals) push or even exceed the limits of precedent to do what they determine is "justice" in any given case. If you were a judge and an unquestionably guilty repeat child molester had a valid but technical claim that would result in the irrevocable dismissal of all charges, would you stretch the law to get that case to a jury?
7.17.2007 7:04am
Public_Defender (mail):
Here's a more succint way of expressing the main point of my last post:


I'm shocked, shocked, to find that judges let the equities influence their resolution of legal issues.
7.17.2007 8:32am
Larry Fafarman (mail) (www):
As we all know, the Supreme Court's decisions on whether to grant review are discretionary and only an infinitesimal fraction of appeals to the SC are granted review. There are probably plenty of bad decisions in the other circuits but the SC chooses to ignore those decisions. Interestingly, Rule 10 of the rules of the SC says,

"A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law."(!) (emphasis added)
http://www.supremecourtus.gov/ctrules/rulesofthecourt.pdf

The 9th Circuit's high rates of review and reversal by the SC are more a reflection of the whims of the SC than of any failings of the 9th Circuit. And it would take only a few screwball judges in a circuit to cause high rates of review and reversal -- those high rates are not reflective of a circuit as a whole.

anonVCfan said (7.16.2007 9:31pm) --

"I wonder if some of the the Ninth Circuit judges who are more out of step with the Supreme Court might simply be more candid about how they got from the facts to the result."

Excellent point. The best ways for lower-court judges to avoid SC review are to write vague opinions or none at all.
7.17.2007 9:18am
FantasiaWHT:
.1% reversal rate is such a ridiculous argument to make in your favor when the body that is able to do such reversals is limited to reviewing only a tiny fraction of the total cases!

I think the important question to be asking is how much "wrong" law is being passed down by the 9th circuit that the Supremes simply are unable to correct? The fact that nearly all 9th decisions that the Supremes reviewed were reversed lends credence to the idea that a lot of wrong law is simply squeaking by for lack of resources.
7.17.2007 9:29am
markm (mail):
"The fact that nearly all 9th decisions that the Supremes reviewed were reversed" means nothing when nearly all decisions from any federal circuit that the Supremes reviewed were reversed. And that shouldn't be surprising; the SC doesn't certify cases that they can readily agree were correctly decided. It looks like in practice nowadays, the minimum requirement to certify a case is not just that four justices think it may have been wrongly decided, but rather that at first impression, at least four justices think it was egregiously wrong, or that it was wrong and touches on areas of the law where SC precedents are lacking and that they can win on. It's not surprising that the four certifying justices usually hold to their original opinion and gain at least one more vote after all the briefs have been read and arguments heard.

OTOH, when case after case goes up for review and is overturned by a near-unanimous SC, it would seem that the lower court may be getting things egregiously wrong, but it's hard to tell when only 0.1% of their decisions are reviewed. Were any of the other 99.9% similar? Nor is a record of 5-4 reversals necessarily better than 9-0 reversals; a string of 5-4 reversals could mean that four SC Justices and one circuit court just won't admit they've lost on an issue - and since the SC doesn't have the time to review everything, that the lower court is usually getting away with ruling against SC precedent...
7.17.2007 12:23pm
Stephan:
The problem with the Ninth Circuit isn't just (or even mostly) about reversal rates, though those are one way in which the problem is manifested. (By the way, I think Cullen Seltzer conveniently ignores the most damning statistics and anecdotal evidence to the effect that the Ninth Circuit not only gets things wrong too often -- year in and year out -- but that it really messes things up when it does go wrong.)

The real problem is simply that the court is intolerably inefficient because of its size. Depending on the panel, it often takes the court longer (and sometimes much longer) than a year after oral argument to issue a decision in even the most routine of cases. Motions are sometimes lost in the shuffle, and phone calls about administrative matters often go unanswered.

Worse yet, I've heard it from more than one authority that, because of the caseload, clerks are too busy to prepare bench memos for every case. The upshot is that a single clerk from a single judge's chambers will prepare a single bench memo for all three panel members in a given case (instead of each panel member having his or her own clerk prepare his or her own bench memo independently). I don't mean to overstate the importance of bench memos, but they're certainly one standard way to prepare for argument and for authorship of an opinion. Accordingly, this short-cut practice strikes me as more evidence that the Ninth Circuit's caseload precludes sufficient, independent preparation across a body of cases and will mean that legitimate legal arguments or factual matters will at times be misunderstood or will be overlooked altogether.

Perhaps worst of all, rehearings and rehearings en banc are too common, again because of the court's size -- panels often have to decide between two strands of precedent that are directly in conflict. And which strand of precedent prevails in a given case is far too dependent upon the identity of the panel members. I wonder whether the court's most extreme members aren't thinking in such cases: "How much can we get away with, without attracting the attention of the en banc court?" The frequency of rehearings and rehearings en banc further slows down the process, takes up more resources, and leads to underpreparation in other cases. And this is all without mentioning that the en banc court -- though composed of an unwieldy number of judges -- isn't even composed of the whole circuit, which creates still more problems of its own (including, most obviously, "luck-of-the-draw" issues).

Given the court's size, these difficulties (and innumerable others) are inevitable. They're only exacerbated, though, by the many law-averse ideologues who inhabit the Ninth Circuit (and here I am indeed referring primarily but not exclusively to the judges on the court's left flank).

Frankly, I'm surprised that there's even a debate about whether the Ninth Circuit should be split up. Most lawyers who routinely or even intermittently practice there (no matter their ideological persuasion) know -- whether they admit it in polite company or not -- that a division is long past due.

In sum, the fact that the Supreme Court, over time, has reversed the Ninth Circuit more frequently and more emphatically than any other circuit is just a small reminder of the Ninth's poor state of affairs.
7.17.2007 2:00pm
Larry Fafarman (mail) (www):
Stephan says --
Perhaps worst of all, rehearings and rehearings en banc are too common, again because of the court's size -- panels often have to decide between two strands of precedent that are directly in conflict. And which strand of precedent prevails in a given case is far too dependent upon the identity of the panel members.

The Wikipedia article on en banc rehearings says,

Pub L. No. 95-486 states that for Courts with more than 15 judges, an en banc hearing may consist of "such number of members of its en banc courts as may be prescribed by rule of the court of appeals." So far, this (sic) only the United States Court of Appeals for the Ninth Circuit, with 28 judges utilizes that procedure, and its "en banc" court consists of 15 judges. (Theoretically, the Ninth Circuit can hear the case with all judges participating. In practice, however, such a hearing has only been asked for thrice and denied each time . . . .)

-- from
http://en.wikipedia.org/wiki/En_banc
7.17.2007 2:33pm
Alec:
I've never really bought the idea that the Ninth is reversed because it is full of hysterical leftists. Anyone who believes that would need to explain 9-0 decisions (or decisions where, say, Justice Scalia is the lone dissenter).
Moreover, does anyone look at the actual decisions? The 2005 Raich decision reversing the Ninth's take on medical marijuana grown and consumed for personal use intrastate (and not sold) invited three dissents from conservative justices. Or what about Kyllo v. United States (evidence of marijuana by thermal imaging device inadmissible)? And as someone who sees decisions from the Ninth in criminal cases all the time, I can tell you they are not endorsing radical liberal interpretations of the law. Just to give you a sample:

United States v. Abbouchi: Customs inspection in KY airport a border search for 4th amendment purposes.

United States v. Forrester: Government tapping into computer and recording URLS you visit and email addresses you send to and receive email from does not constitute a "search" for fourth amendment purposes.

Another decision held that possessing a story about child sexual abuse could be used as evidence of intent or motive in a pedophilia case (despite the ban on character propensity in the evidence rules).

I could go on, but the point I am trying to make is that this is not an extreme liberal court. Judge Fisher wrote the Fourth Amendment IP address opinion, for example. I believe he was appointed by Clinton.

I am more inclined to believe that the geographic area of the Ninth, the population (it includes the largest state, after all) and the size and structure of the court (limited en banc, etc.) probably account for more cases going to the supremes.
7.17.2007 3:08pm
Larry Fafarman (mail) (www):
markm (7.17.2007 11:23am) --

"It looks like in practice nowadays, the minimum requirement to certify a case is not just that four justices think it may have been wrongly decided, but rather that at first impression, at least four justices think it was egregiously wrong, or that it was wrong and touches on areas of the law where SC precedents are lacking and that they can win on."

Disagreement with a decision is not the only reason why SC justices vote to grant certiorari. The SC's Rule 10 says,

A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court's discretion, indicate the character of the reasons the Court considers:

(a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court's supervisory power;
(b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals;
(c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.

A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.


-- from http://www.supremecourtus.gov/ctrules/rulesofthecourt.pdf

Only the bolded factor in Rule 10(a) definitely involves disagreement with a decision. However, I think that disagreement with a decision will make a justice more likely to vote for certiorari even when one or more of the other factors in Rules (10(a)-(c) is present. Also, there appears to be a conflict between the two bolded statements above -- the second bold statement appears to be a recognition by the court that it would be impractical to review every seemingly bad decision.

Another factor is that the overwhelming majority of court decisions are unpublished. Even with the new Federal Rules of Appellate Procedure Rule 32.1 requiring all circuits to allow citations of unpublished opinions (however, FRAP Rule 32.1 does not require that unpublished opinions be binding), I think that the SC is likely to just ignore bad unpublished opinions. And many cases have no written opinions at all.

I assert that there are just too many uncertain variables involved for any meaningful conclusions to be drawn from these statistics of Supreme Court review of the decisions of the different circuits.

Markm also says,
It's not surprising that the four certifying justices usually hold to their original opinion and gain at least one more vote after all the briefs have been read and arguments heard.

The justices voting for certiorari might not even need to gain any more votes if five or more justices vote for certiorari.
7.17.2007 8:34pm
Public_Defender (mail):
.1% reversal rate is such a ridiculous argument to make in your favor when the body that is able to do such reversals is limited to reviewing only a tiny fraction of the total cases!

Only a few decades ago, the US Supreme Court heard about twice as many cases on the merits, so the court could accept and reverse dozens more cases if they felt it justified. The US Supreme Court choses to reverse only an extra .1% of Ninth Circuit cases.

On the other hand, if you are correct, and the number of cases the Supreme Court reverses is too small to be a valid indicator of Circuit Court competence, then the reversal rate is meaningless.
7.18.2007 7:47pm
Larry Fafarman (mail) (www):
FantasiaWHT said (7.17.2007 8:29am) --
".1% reversal rate is such a ridiculous argument to make in your favor when the body that is able to do such reversals is limited to reviewing only a tiny fraction of the total cases!"

The above statement is a misinterpretation of the 0.1% figure, which is a rough approximation of the "excess" of Supreme Court 9th Circuit reviews (not reversals) beyond the number that would be expected on the basis of population. The Cullen Seltzer report in Slate said that last year the SC reviewed 64 cases from the federal appeals courts (73 cases from all sources), 32.8 percent -- or 21 -- came from the 9th circuit, and 90.5 percent, or 19, of these 9th circuit cases were reversed. The 9th circuit had 6,387 on-the-merits decisions for the 12 months ending in Sept. 2006, but probably few or even none of the SC's 2006 decisions came from this group of 9th circuit decisions. However, using the 6,387 figure as typical, then the 19 reversed decisions represent a 0.30 percent reversal rate. However, the SC tends to ignore unpublished opinions (and I don't think this is going to change as a result of the new FRAP Rule 32.1 requiring all federal circuits to allow citations of unpublished opinions, because FRAP 32.1 does not require that unpublished opinions be binding), and it is estimated that about 80 percent of appeals court opinions are unpublished -- see

http://www.law.com/jsp/article.jsp?id=1052440777339

So assuming that 20 percent of those approx. 6,387 decisions were published, then 1277 decisions were published, and those 19 reversals represent about 1.5 percent of published opinions -- still a tiny fraction, though, IMO. With a lower number of published opinions, the percentage would of course be even higher.

Also, the reversal rates -- e.g., 90.5 percent for the reviewed cases of the 9th circuit in 2006 -- are questionable because many lower court decisions are sustained in part and reversed in part and others are vacated and/or remanded. Also, what about the many cases that were dismissed and never reached an on-the-merits decision -- are those counted here? The Supreme Court often reviews dismissals. This can all get very complicated. As the saying goes, there are three kinds of lies -- lies, damned lies, and statistics.

Anyway, I still feel that the differences between the circuits are not statistically significant.

IMO to help keep the lower courts on their toes, the SC should have a policy of reviewing each year a few unpublished opinions and a few decisions that have no opinions at all -- and a great stigma should be attached to judges whose decisions lacking opinions are reversed.
7.19.2007 8:00am