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."

Is Splitting the Ninth the Answer? (What Was the Question?):

Is there anything wrong with the Ninth Circuit? Anything that splitting the Court would solve? For more on these questions see this post at SCOTUSBlog by Ben Winograd and this post by Ethan Leib on Prawfsblawg.

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.


Justice Stevens on the Ninth Circuit:

While chairing the U.S. Court of Appeals for the Ninth Circuit's judicial conference last week, Justice Stevens addressed concerns about the Circuit's apparently high reversal rate at the Supreme Court.

The 9th Circuit's dubious record of a 90 percent reversal rate last session, reversing 19 of 21 cases, is "misleading" and does not reflect where it really stands, Stevens said. He pointed out in the Seattle schools case, Parents United v. Seattle School District, 127 S.Ct. 2738, that the 6th and 1st Circuits had ruled similarly and that three appeals courts ruled the same on so-called partial birth abortion cases, which were later overturned. . . .

As for concerns that the U.S. Supreme Court may be singling out the 9th Circuit for special attention, "Not in my chambers," he said. He could not be as certain whether other justices keep a closer watch on what the 9th Circuit produces.

Ninth Circuit Judges Wary of Split:

The National Law Journal reports from the Ninth Circuit Judicial conference that many of the circuit's judges do not like proposals to split up the circuit.

The Los Angeles Times op-ed that has some judges grousing was written by Vanderbilt University Law School professor Brian Fitzpatrick, who was also a law clerk to 9th U.S. Circuit Court of Appeals Judge Diarmuid O'Scannlain of Portland, Ore., an outspoken supporter of a circuit split.

Fitzpatrick suggested that "it can be shown mathematically that as a court grows larger, it is increasingly likely to issue extreme decisions." . . .

Of the potential for "extremist" decisions in a large circuit, Chief Judge Mary Schroeder said, "You have got to be kidding. We don't appoint the judges, the president does. You don't split up a court because you don't like the decisions it makes." . . .

Schroeder noted in the circuit's annual report issued this week that, at the peak of congressional efforts last year to split the 9th Circuit, 33 of the 47 total active and senior judges signed a statement of opposition to a split.