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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."
Paul B:
The arguments made by Noonan and Thomas remind me of those made by Anthony Lewis in favor of Rose Bird-that it was preposterous to say that the Bird CA Supreme Court was soft on criminals because it affirmed 99% of all criminal appeals.
2.27.2008 1:17pm
Simon Dodd (mail) (www):
Orin, you omitted a quote in Patrick's post relevant to your earlier post about Justice Thomas and oral argument:
Judge Noonan [regarding the persuasiveness of oral argument]: "You are absolutely right -- we've read the briefs, we've looked at the record, and we've made up our mind! Now it can be changed, maybe 1 in 10 times, but we have done our homework, and we are intelligent, and of course we have made opinions prior to oral arguement!"
2.27.2008 1:17pm
Crunchy Frog:
I'd be willing to guess that neither one of them has been married to Carmen Electra...
2.27.2008 1:18pm
CVme:
Except, of course, that it's not really a myth at all. I have yet to see another circuit summarily reversed three times in the same day, and Tom Goldstein's stat packs show that the rate of reversal really is higher in the 9th.

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.
2.27.2008 1:19pm
zooba:
CVme:

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.
2.27.2008 1:27pm
Soronel Haetir (mail):

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.
2.27.2008 1:29pm
titus32:
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.

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.
2.27.2008 1:34pm
Dude Cool (mail):
I tend to find the 9th's reversal rate a boring topic. They're reversed so much because they are the most liberal circuit under a conservative court. Dennis Rodman... sheesh.
2.27.2008 1:36pm
Daniel J. Solove (www):
The 9th Circuit decides more cases than most circuit courts. so perhaps the most accurate statistic shouldn't be total number of reversals but the number of reversed cases per cases decided. I wonder whether on this basis the 9th Circuit would be such an outlier. Has anybody compiled such a statistic?
2.27.2008 1:38pm
Dangermouse:
"Yeah, we're like the bad boys of the federal circuit."

More like the idiots.
2.27.2008 1:42pm
GMUSL '07 Alum (mail):
Daniel, that statistic would only be relevant if the Supreme Court granted cert based on the number of the cases decided by the particular court under review.

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.
2.27.2008 1:47pm
GMUSL '07 Alum (mail):
I add that nor are they, per Judge Thomas, "bad boys of the federal circuit," as they are not on the Federal Circuit. :)
2.27.2008 1:49pm
hattio1:
To back up what Daniel Solove said, they do decide waaaay more cases than other circuits, and often, separate panels will go different ways on the same issue within a matter of a couple of days. If the 9th doesn't take it up en banc and sort the matter out (and it happens often enough that they can't take up all of them) then the Supreme Court may very well take up the issue and over-rule them.
2.27.2008 1:52pm
Armen (mail) (www):
Prof. Solove, I'm almost certain I've seen such a stat on SCOTUSBlog for OT 06, but I just can't find it. I think the 9th had a lower reversal rate than the 8th and tied with another circuit.

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.
2.27.2008 1:57pm
NI:
I'd like to know if the 9th's relatively high reversal rate was historically true when SCOTUS was more liberal -- say under Chief Justice Earl Warren. I've long believed the Supreme Court is as result-oriented as any other court so it's really no surprise that a conservative SCOTUS frequently overrules the most liberal circuit in the country. Does anyone seriously think that if the SCOTUS majority were still Warren, Douglas, Brennan, Marshall and Blackmun that it wouldn't be the Fourth that got summarily reversed a lot?
2.27.2008 2:00pm
CrimsonTribe (mail):

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.
2.27.2008 2:05pm
CVme:
Well, looking at OT2006, 19 of 21 cases from the 9th Circuit were reversed, for a 85.7% reversal rate. While the 3d and 5th Circuits had 100% rates, they only had 1 and 5 cases, respectively. See here.

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.
2.27.2008 2:06pm
OrinKerr:
The percentage of reversals is only one indicator, for a few reasons.

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.
2.27.2008 2:12pm
frankcross (mail):
Overall, the 9th has a higher reversal rate over ten years, though not for individual years. And it's not just more cases, because those reversals are closely associated with individual judges. I did the numbers a while back (can't find them) but recall that Reinhardt and maybe Pregerson explained the majority of the reversals.
2.27.2008 2:14pm
Al Maviva (mail):
Yeah, we're like the bad boys of the federal circuit.

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.
2.27.2008 2:25pm
JosephSlater (mail):
No comment on the merits, but as a long-time Detroit Pistons fan, the reference to Rodman and the "Bad Boys" amused me. Now, which Circuit would be Magic and the "Showtime" Lakers?
2.27.2008 3:03pm
hattio1:
JosephSlater;
The Supreme Court obviously would be the "Showtime" Lakers...they always win.
2.27.2008 3:40pm
alias:
Al Maviva writes:

Yeah, we're like the bad boys of the federal circuit.

Among judges or lawyers with any pretensions of following the law, this would be embarassing, and not admitted to in public.


(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:

To be sure, there are many times when we are forced to think about how the Supreme Court might resolve an unsettled question of law in a particular controversy that comes before us. In certain types of cases we will try to divine what the court will do in order to reach what we believe will be the appropriate decision. It is not, however, our job to anticipate when the current justices of the Supreme Court will cut back on individual rights and to rush to do the dirty deed for them. Many times when my court has been reversed, it is because we have properly applied existing law, but in reviewing our decision the Supreme Court has adopted a new and different interpretation than it had previously given a statute or constitutional provision -- a new reading that is far more restrictive of individual or group rights. I certainly do not think that legal observers should hold in high regard those judges who are eager to anticipate how the Court will next choose to erode our rights and liberties and condemn those who respect stare decisis and apply the law as it exists at the time the case comes before them.
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.
2.27.2008 4:01pm
JosephSlater (mail):
Hattio1: But the Bad Boy Pistons BEAT the Showtime Lakers for the championship one year (granted, the result went the other way the previous year).
2.27.2008 4:14pm
OrinKerr:
Alias,

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.
2.27.2008 4:21pm
Kent Scheidegger (mail) (www):
I agree that reversal rate alone is a poor indicator of whether a court is out of the mainstream. In recent years, I've been looking more at summary reversals and unanimous or nearly unanimous reversals. There is enough ideological spread on the current Supreme Court that if there is none or only one vote to affirm, and that happens repeatedly, it's an indicator of a problem.

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.
2.27.2008 4:48pm
DJR:
Orin,

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.
2.27.2008 5:04pm
PersonFromPorlock:
My God, I haven't thought about Dennis Rodman since he had green hair and looked like a chia pet!
2.27.2008 5:09pm
alias:
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.

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.
2.27.2008 6:08pm
hattio1:
JosephSlater;
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.
2.27.2008 6:09pm
alias:
DJR, perhaps one of these days someone will start a writ of Reinhardt site, but Reinhardt reversals aren't hard to find. Off the top of my head, I can think of Carey v. Musladin, Texaco v. Dagher, and Washington v. Glucksberg
2.27.2008 6:17pm
Dave N (mail):
hattio1.

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.
2.27.2008 8:23pm
Truth Seeker:
hattio1

And you don't think there'll be enough Republican senators to filibuster?
2.28.2008 12:06am
skyywise (mail):
1) Generally, we all agree that the 9th Circuit pushes the envelope more often than other Circuits in terms of jurisprudence. Whether or not one believes this is a valid role of the judiciary or not is another matter. (I am for pushing the envelope / some judicial activism as it is needed, see Brown I and such.) The 9th seems to believe that they are Progressive, that this is a needed and proper role, and they will continue to adjudicate as such.

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.
2.28.2008 8:29am
DJR:
So here's a question: Assuming that it's correct that Reinhardt is responsible for more than his share of Supreme Court reversals -- enough to affect the 9th's overall rate of reversal, how is it that he commands a majority when he writes these opinions, and how is it that the Ninth is so reluctant to grant rehearing en banc?
2.28.2008 8:57am
titus32:
DJR, part of it is that Reinhardt (and his clerks) is very smart and very hardworking. It takes intelligence and diligence to take extreme positions in a legally plausible way. Another part is that about half of the Ninth Circuit is sympathetic with the outcomes in his opinions. This is true of both older and younger judges on the circuit, even though the younger ones may have more polish. Indeed, don't forget that there are plenty of other judges on the circuit who get overruled (e.g., Pregerson).
2.28.2008 9:09am
OrinKerr:
So here's a question: Assuming that it's correct that Reinhardt is responsible for more than his share of Supreme Court reversals -- enough to affect the 9th's overall rate of reversal, how is it that he commands a majority when he writes these opinions, and how is it that the Ninth is so reluctant to grant rehearing en banc?

From the post:
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."
2.28.2008 1:59pm
JosephSlater (mail):
I take Hattio1 as playing along with my (arguably lame) jokes extending the NBA metaphors for Circuit Courts. In that spirt, Hattio1, let me say as a long-time Pistons fan that BACK TO BACK championships (which the Bad Boys accomplished) are NOT an accident!
2.28.2008 2:53pm
Kent Scheidegger (mail) (www):
Regarding the Ninth Circuit's long-standing failure to correct rogue panel decisions en banc, things are getting better there. See here and here.

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.
2.28.2008 7:51pm
Syd Henderson (mail):
I love the quotes from the cases


Judge Noonan: "Your policy covers fraud, and someone charged fraud. Why didn't you cover them?"
Attorney: "Well it covers fraud unless that fraud results in someone acquiring ill gotten gains."
Judge Noonan: "Are you seriously making that argument?"
Attorney: "Excuse me?"


Yes, the attorney was seriously making that argument.
2.29.2008 6:34pm
Syd Henderson (mail):
From which I get the theory that the reason the court gets reversed is because its judges are driven insane by the attorneys. (See also the one where lawyers are arguing over the spoils in a case where they sucked most of the money out of a settlement.)
2.29.2008 6:36pm