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Updated SCOTUSblog StatPack:
The latest ScotusBlog StatPack of the current Supreme Court Term is now available. Some interesting stats from it:

  The percentage of cases in which Chief Justice Roberts has agreed in full with each of the other Justices so far this Term (in order from most agreement to the least) is: 1) Kennedy, 87%; 2) Alito, 81%; 3) Breyer, 73%; 4) Souter, 66%; 5) Ginsburg, 64%; (6)-(7) tie between Stevens and Scalia, 62%; and 8) Thomas, 60%.

  On the other hand, the percentage of cases in which Chief Justice Roberts has agreed as to the result (affirm, reverse, etc.) with other Justices is: 1) Kennedy, 91%; 2) Scalia, 89%; 3) Alito, 87%; 4) Breyer, 84%; (5)-(6) tie between Stevens and Thomas, 79%; (7)-(8) tie between Souter and Ginsburg, 72%.

  The two Justices with the highest rate of agreement in full so far this Term are Roberts and Kennedy, at 87%; The two Justices with the highest rate of disagreement so far this Term are Thomas and Ginsburg, at 40%.

  The Court has reversed in 59% of cases so far this term; that includes 5 of the the 6 cases decided so far from the Ninth Circuit
gwinje:
So, what's it all mean?
6.11.2008 1:12am
CDU (mail) (www):
So, what's it all mean?


I means that Roberts is an umpire, or that Roberts is a partisan hack, or that Roberts is the antichrist. It all depends on what preconceptions you bring to the table.
6.11.2008 2:27am
andy (mail) (www):
Federal circuit also seems to be having a tough time this year, with some unanimous reversals.
6.11.2008 3:37am
It means (mail):
Roberts is the "Kennedy-Scalia bridge" and Breyer isn't as liberal as people think.
6.11.2008 4:44am
FantasiaWHT:
Wait, the 9th circuit was affirmed? That just turned my universe upside down. When did that happen?
6.11.2008 8:54am
r.friedman (mail):
The real outstanding question is, in Roberts' opinion in Heller, will he state that of course you can't fire in a crowded theater.
6.11.2008 10:18am
Henry Chew (mail):
It means:Roberts is the "Kennedy-Scalia bridge" and Breyer isn't as liberal as people think.

Breyer has never been exactly liberal, he's more like a moderate liberal justice plus he is always very deferential towards the government so you might see him more liberal if Obama wins the presidency.
6.11.2008 10:18am
Terrivus:
Wait, the 9th circuit was affirmed? That just turned my universe upside down. When did that happen?

Just this week, in Engquist.

The best part of this: Judge Reinhardt had dissented in the panel decision below. So even when the Supreme Court affirms the Ninth Circuit, Judge Reinhardt is still wrong.
6.11.2008 10:31am
frankcross (mail):
It means that Roberts commonly agrees with Scalia on results but not opinions. And I think that is pretty significant.
6.11.2008 10:38am
GV:

The Court has reversed in 59% of cases so far this term; that includes 5 of the the 6 cases decided so far from the Ninth Circuit.

Orin, what was the point of adding this little gem, since it means absolutely nothing? And you know you're perpetrating the myth that it does have some meaning, feeding into the predictable snarky comments about the Ninth Circuit.
6.11.2008 10:43am
CDR D (mail):
Professor Kerr,

Do the Justices get together and discuss the cases heard prior to voting, or do they just vote, and then the CJ assigns the writing of the opinion and dissent?

Just curious as to how they operate.
6.11.2008 11:03am
OrinKerr:
GV writes:
And you know you're perpetrating the myth that it does have some meaning, feeding into the predictable snarky comments about the Ninth Circuit.
GV, I spent somewhere around 700-800 hours in 2003-2004 reading cert petitions and lower court opinions from the circuit courts and the state supreme courts, and during that time I became very familiar with the work of the different circuits. There was no question that the work of the Ninth Circuit was notably different than the rest: The Ninth Circuit really did stand out for the frequency of its its weird opinions that didn't follow from traditional legal materials. It wasn't a question of Ninth Circuit cases being more "liberal", but rather a sense that Ninth Circuit cases were less focused on precedents and more interested in policy.

If you like, you can dismiss the Ninth Circuit's reputation as a "myth," and you can accuse me of acting in bad faith. But I am acting in good faith, based on my personal experience, and it is my view that this reputation is accurate and well deserved. Sorry if that doesn't match up with your views, but those are indeed mine.
6.11.2008 11:10am
GV:

There was no question that the work of the Ninth Circuit was notably different than the rest: The Ninth Circuit really did stand out for the frequency of its its weird opinions that didn't follow from traditional legal materials.

I never contested this in my last post; instead, I noted the myth that a circuit's reversal rate had anything to do with your conclusion (made implicit in your last post, but explicit here) that the Ninth Circuit is "notably different than the rest." Are you going to contest that a circuit's reversal rate, standing alone, is indicative of anything? Are you going to contest that most people seem to believe that it does have some meaning (hence its stature as a widespread myth)?

Perhaps you're right that the Ninth Circuit is different than most (or every other) circuit. But its reversal rate is entirely irrelevant to that conclusion.
6.11.2008 12:03pm
GV:
And I should add that I should not have implied that you were acting in bad faith. But I had thought, perhaps incorrectly, that you had previously admitted that a circuit's reversal rate was not evidence of it being out of touch, given the numerous, well known, short comings of such a statistic.
6.11.2008 12:07pm
Anon21:
The Court has reversed in 59% of cases so far this term; that includes 5 of the the 6 cases decided so far from the Ninth Circuit

It also includes 1 of 1 Sixth Circuit cases decided so far, and 2 of 2 Tenth Circuit cases decided. Close runners-up are the Eleventh and Federal Circuits, each with 3 of 4 cases reversed. But I guess it might be too much to expect the good Professor to include the data that doesn't support his implicit argument in his post.
6.11.2008 12:08pm
andy (mail) (www):


Orin, what was the point of adding this little gem, since it means absolutely nothing? And you know you're perpetrating the myth that it does have some meaning, feeding into the predictable snarky comments about the Ninth Circuit.


For whatever it's worth, the Ninth Circuit wrote an uncommonly silly opinion in a tax case which was reversed by the Court this year; I think one can accurately say that the opinion was truly an oddball and utterly ridiculous (the Solicitor General didn't even try to defend the Ninth's reasoning). I have a short write-up here .
6.11.2008 1:17pm
OrinKerr:
GV,

I believe I have written before that reversal rates are only one indicator among several as to whether a lower court is applying the law honestly and correctly. The Supreme Court can decide to change the law, adopting a lower court decision that was wrong or reversing one that was right. Plus, counting circuits doesn't count the Court's agreement or disagreement with cases from other circuits that held the same thing but weren't reviewed.

But that doesn't mean that a reversal rate is irrelevant; of course it's relevant. The fact that something correlates imperfectly does not mean it doesn't correlate at all. So yes, I do in fact contest your claim that reversal rate is "entirely irrelevant" and "means absolutely nothing."
6.11.2008 1:23pm
PLR:
So, what's it all mean?

I'm tempted to say it means that I like Justice Ginsburg more than I thought, but in view of the light caseload of the Court I probably shouldn't take anything away from it based on such a small sample size.
6.11.2008 1:25pm
krs:
andy writes:

Federal circuit also seems to be having a tough time this year, with some unanimous reversals.

The CAFC's in a unique position. Because of its unique jurisdiction, it rarely creates splits with other circuits. When it does, it's usually in the area of tax or civil procedure (see, e.g. US v. Hinck (tax case, last term, CAFC split with CA5, Supreme Court affirmed); Unitherm (OT 2005, civ pro question, CAFC split with others, was reversed).

If there's a circuit split on an issue, the Supreme Court can grant cert to affirm an opinion it likes just as easily as it can do so to reverse an opinion it doesn't like, and both scenarios are about equally valuable in the sense of providing guidance to the lower courts.

In the case of the Federal Circuit, though, if the Supreme Court likes what it's doing with patent law, there's not much reason to grant cert just to say "good job." Such a decision usually has no value to the other circuits unless the patent issue is related to a broader issue (see, e.g. Markman v. Westview Instruments (1996), where the issue of patent claim construction was connected to the broader issue of the Seventh Amendment entitlement to a jury trial in certain civil cases; John R. Sand (this term), where the issue of the jurisdiction of the Court of Federal Claims was connected to the broader issue of when and whether statutes of limitations are jurisdictional).

So, generally speaking, in any given Federal Circuit patent case, there's usually no reason for the Supreme Court to grant cert unless it intends to reverse.

I'd therefore expect the CAFC's reversal rate in patent cases to be nearly 100%, and I don't think that reflects badly on them.

As for the fact that many of the reversals are unanimous, I'm not sure what the explanation is. Perhaps the Supreme Court generally only grants cert when the court feels strongly about the need to reverse, or perhaps much of the court is indifferent to patents and willing to sign on to whatever one of their colleagues writes, within reason. Or perhaps there's another explanation that does reflect badly on the CAFC. I can only speculate about that.

I've never been a Supreme Court Justice or clerk, however, so this is all just my speculation.
6.11.2008 1:53pm
GV:

But that doesn't mean that a reversal rate is irrelevant; of course it's relevant. The fact that something correlates imperfectly does not mean it doesn't correlate at all. So yes, I do in fact contest your claim that reversal rate is "entirely irrelevant" and "means absolutely nothing."

Besides saying "of course it's relevant," I see no explaination for why it's relevant. You listed some of the reasons why the number is not helpful. Others could have been included, such as the small sample size. Thus, I see no reason to believe why a circuit court's reversal rate -- particularly in any given year -- correlates at all to anything. And if you believe it's a very weak correlation, isn't it misleading to cite it as support without the caveat that the correlation is weak, especially in light of the fact that most people seem to think it's dispositive?
6.11.2008 2:11pm
Crunchy Frog:
GV: If it were simply a matter of small sample size, the one would expect there to be fluctuation from year to year in the 9th's reversal rate. There isn't. It's been this way for oh, decades now.

The 9th Circuit is notorious for adhering to 9th Circuit precedent, and ignoring intervening SC holdings. Thus, it gets slapped down continuously.

Unfortunately, the prospects of this ever changing depend on Reinhart and several others retiring (or dying off) and the CA voting public electing someone with a) more brain cells than Barbara Boxer, and/or b) more ethics than Dianne Feinstein. I'm not holding my breath.
6.11.2008 3:00pm
GV:
Crunchy front, actually, there is quite a bit of fluctuation from year to year on its overall reversal rate, which pretty much demolishes the rest of your argument. The Ninth Circuit's reversal rate (to the extent it is indicative of anything) is sometimes high relative to the other circuits and it's sometimes low. They've had some bad years (hello 1996), but the circuit often falls right around the median for circuit reversal rates. But in any event, since the number itself is correlated to nothing -- and is not correlated to opinion quality -- even if the Ninth were always the most reversed court in the country per capita, that wouldn't necessarily be a bad thing.
6.11.2008 3:46pm
OrinKerr:
GV,

I realize that being an anonymous Internet commenter means that you can say anything you want and never apologize, but I can't understand the basis of your concern. I think it's relevant, which is why I pointed it out, but I don't think it's the end-all-be-all, which is why it is all of one half of a sentence. Seems pretty basic to me. Your efforts to devise a theory in which you think I was being misleading with this one half of one sentence strike me as a strange way to spend your time.
6.11.2008 3:47pm
GV:
I don't know what my anonymity has to do with this -- either I'm right or I'm not. I took umbrage with your implicit (and later explicit) point that the Ninth Circuit's reversal rate (especially in any given year) is somehow correlated to the quality of the Ninth Circuit's work. Since I think this is a widespread misconception about the Ninth, I thought this was worth pointing out. I think I've been pretty clear regarding the basis for my concern, and you've decided not to offer any reason why you believe the Ninth Circuit's reversal rate is relevant besides simply asserting that it is. I'll leave it at that.
6.11.2008 5:15pm
OrinKerr:
GV,

The Ninth Circuit's reversal rate is relevant because a chunk of the cases the Court takes from the Ninth Circuit are essentially error-correction cases: They're goofy decisions that are out of line, and the Court takes them and reverses to try to pressure the Ninth Circuit into being less goofy. When the Court does that, it effects the error rate; therefore the error rate is relevant. So yes, the Ninth Circuit's reversal rate is indeed somehow correlated to the quality of the Ninth Circuit's work. It's not perfectly correlated, of course, but nor is there zero correlation.

As for your anonymity being relevant, in my experience anonymity tends to lead commenters to show more attitude, less civility, and less care than they would if they used their real names and had their personal reputations on the line. I don't know you, though, as far as I know: Perhaps you would show the same attitude either way.
6.11.2008 6:21pm
CDR D (mail):
Since it is seemingly being ignored, I'll assume my 6.11.08 10:03am question about any "behind the scenes" interaction of SCOTUS Justices prior to issuance of a decision was perhaps indiscreet.

I had heard somewhere that they do not discuss their votes among themselves.
6.11.2008 6:38pm
OrinKerr:
CDR D,

Sorry I didn't respond earlier. The Justices meet as a group at conference after the argument; they discuss the cases at the conference; and then they make tentative votes.
6.11.2008 6:43pm
CDR D (mail):
Professor,

Thanks for that. Evidently, I had heard wrong.

Respectfully...
6.11.2008 7:08pm