Bench Memos

Ninth Circuit Leading the Pack for ‘Most Reversed’

Last week, the Supreme Court released this term’s fifth third opinion unanimously reversing the Ninth Circuit (the third first and fourth second were released the preceding week). This gives the Ninth Circuit an early lead in the race for the title of “Most Reversed.”

[UPDATE: 3/13/2014 at 5:28 PM: An observant reader draws my attention to two previous unanimous reversals this term, one in December and one in February, giving the Ninth Circuit an even bigger lead with 5 unanimous reversals in a row.]

The Supreme Court rarely takes cases where a lower court was simply incorrect. There usually must be some other reason for the Supreme Court to take the case, such as to correct a difference in opinion between the courts of appeals, to resolve a question that has confused or misled lower courts, or sometimes just because the case is too important to ignore. Within these boundaries, it is generally easier to convince the Supreme Court that it should take a case when the court of appeals got it wrong. That means that in general, we ought to expect the Supreme Court to reverse more often than it affirms. But as Court-watchers know, even with these qualifications, the Ninth Circuit has a reputation as a magnet for the high court’s negative attention.

Although recent years have seen other circuits competing with the Ninth Circuit for the title of “Most Reversed,” the Ninth still appears to hold the unquestioned title. The Ninth Circuit’s best showing in recent years was October Term 2009, with a 60 percent reversal rate in the 15 cases on which certiorari was granted. The Sixth Circuit got the prize for highest reversal rate that year, with seven cases resulting in seven reversals, while the Seven Circuit came in a close second (91 percent reversal rate in eleven cases).  

But in 2010, perhaps seeking to reclaim its position at the top of the heap, the Ninth Circuit was reversed a startling 19 times (79 percent), three times as many reversals as most circuits had cases before the Supreme Court. The same pattern continued in the 2011 (71 percent) and 2012 terms (86 percent), when the Ninth Circuit was reversed more than twice as many times as most circuits had cases before the Court.

The Court is done releasing opinions for this week, but will resume again next week. What will next week hold? We shall see.

(Hat tip to SCOTUSblog for the statistics.)

Jonathan Keim — Jonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...

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