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Bench Memos

NRO’s home for judicial news and analysis.

The Supreme Court of the Ninth Circuit



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The Supreme Court continues to spend a disproportionate amount of its time on Ninth Circuit cases. According to this Daily Journal article, “Of 54 cases the court has agreed to hear so far, 18 are 9th Circuit rulings.” The article tries to put this Ninth Circuit caseload in context:

The 9th Circuit is the biggest circuit by area and population, and its caseload constitutes 20 percent of the total heard by federal circuit courts. But its rulings make up 33.3 percent of the cases the Supreme Court has agreed to review so far.  

I think that the Supreme Court’s docket of Ninth Circuit cases is even more disproportionate than this context suggests:

1.  Six of the cases on the Court’s docket have come up through state-court systems, so the relevant denominator of cases that have worked their way through the federal system is 48, not 54. That adjustment would bump the Ninth Circuit’s share of federal cases up to 37.5%.

2.  Yet another case (in Schwarzenegger v. Plata) is from a special three-judge district court in California that included notorious Ninth Circuit judge Stephen Reinhardt as one of its members. The two other judges were hard-Left Carter-appointed district judges who fully embody the zaniness of the Ninth Circuit. So it wouldn’t be much of a stretch to count this case as number 19 from the Ninth Circuit. That would take the Ninth Circuit’s share right up near 40%.

3.  In other words, the Ninth Circuit, with 20% of the total cases heard by federal circuit courts, accounts for nearly 40% of the Court’s cases from the federal system.  The other circuits, with 80% of the cases, account for around 60%.  So, compared to the baseline of the other circuits, the Ninth Circuit is overrepresented by a factor of 2.5 or higher (2.67, if you round the numbers in this paragraph).



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