Re: The Supreme Court of the Ninth Circuit

by Ed Whelan

Some follow-up on the Ninth Circuit’s starkly disproportionate share of the Supreme Court’s caseload:

1.  Last month, Ninth Circuit judge Diarmuid F. O’Scannlain delivered a speech to the Harvard Federalist Society in which he documented the “strikingly poor” record of the Ninth Circuit in the Supreme Court. Judge O’Scannlain has long been among the very best federal appellate judges, and the Ninth Circuit’s record would be dramatically different if he had not so often found himself in the minority.

I’ve obtained a copy of the text of Judge O’Scannlain’s speech and offer these excerpts:

From October Term 2000 to October Term 2009 (the last completed Term of the Court), the Supreme Court rendered full opinions on the merits in 182 cases from the Ninth Circuit. In 148 of those cases, the Supreme Court reversed or vacated the decision of the Ninth Circuit. In other words, the Ninth Circuit got it wrong in 81% of its cases that the Supreme Court agreed to hear.…

[D]uring the same nine Terms of the Supreme Court, the other twelve circuits (including the Federal Circuit) had a combined reversal rate of only 70%—twelve percentage points lower than that of the Ninth Circuit.…

Even more telling than the reversal rate itself, however, is the number of unanimous reversals.  Seventy-two of the 148 Ninth Circuit cases reversed during the period in question were at the hands of a unanimous Supreme Court. Put differently, in about one-half of all the cases in which the Ninth Circuit was reversed, not a single Justice agreed with the Ninth Circuit’s decision. In the words of the eminent constitutional law scholar Akhil Amar: “When you’re not picking up the votes of anyone on the Court, something is screwy.”

To add insult to injury, the Supreme Court handed down fifteen of the seventy-two unanimous reversals in summary dispositions—that is, in unsigned, per curiam opinions, without the benefit of briefs on the merits or oral argument. Summary reversals are, in the words of Chief Justice Roberts, “bitter medicine,” because they are reserved for cases in which the lower court’s error is so “apparent” that neither briefing nor argument is necessary. Unfortunately, approximately one in ten Ninth Circuit cases reviewed by the Supreme Court results in a summary reversal.

2.  My quick review of the cases from the Ninth Circuit before the Supreme Court this term indicates that—surprise!—Judge Stephen Reinhardt leads the pack with seven cases in which he was part of the majority:  three that he authored, and four that he joined. (For the reasons stated in point 2 of my previous post, I’m including the three-judge district court ruling in Schwarzenegger v. Plata in my count; Reinhardt co-authored that ruling.)

(I don’t mean to read too much into the mere fact that a judge has a ruling reviewed by the Supreme Court. It may well be that the Court will affirm the ruling below or that it will wrongly reverse. It may be that the judge was bound by circuit precedent to rule a certain way or that there was a genuinely difficult question of first impression. And even the best judges should be afforded some margin for error. But Reinhardt’s broader pattern is something else.)

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