This is the time of the year when we often hear conservative Idaho politicians crow about how the Supreme Court has put the liberal Ninth Circuit in its place again by reversing so many of its opinions and that it's time to break up the circuit.Putting aside the obvious problem with that logic, i.e., breaking up the circuit will not change the composition of the court and would not make a difference in any individual votes, and the unproven premise of the argument, i.e., that all the "liberal" judges are from the part of the circuit Idaho wouldn't be in, an even more basic question remains: Is the Ninth Circuit more liberal than other circuits?
Let's look at the statistics from this year.* The "break up the Ninth Circuit" crowd assumes the Supreme Court always makes "conservative" rulings and argues that the high number of Ninth Circuit reversals means that it is too liberal. But if the number of Supreme Court reversals is a true test of liberalism, the Ninth Circuit is not more liberal than other courts, as there is no statistically significant difference between the Ninth Circuit's reversal rate (81.3%) and the overall reversal rate (75.9%). By way of comparison, state courts were reversed at a 73.3% rate. Does this mean the state courts are more liberal than the U.S. Supreme Court? (The weakness of this argument is further demonstrated by the fact that some state courts were reversed because they did not provide sufficient rights under the federal constitution as in Melendez-Diaz.)
In fact the argument leads to the opposite conclusion. Seven circuits had all of their decisions reversed. The Fourth, Sixth, Seventh, Eighth and Tenth Circuits, the DC Circuit and the Federal Circuit had a combined 23/23 cases reversed. This is ten more cases than the Ninth Circuit had reversed. So, is the Ninth Circuit one of the more conservative circuits because its reversal rate was lower?
There might be some good reasons to break up the Ninth Circuit, but this tired shibboleth from conservative groups ain't one of them.
* These numbers are taken from the "Akin Gump Supreme Court Summary Memo" linked on SCOTUSblog. SCOIDBlog sincerely thanks the very smart people at SCOTUSblog for their excellent work and for not getting mad at us for parodying their name. To see the entire memo, click here: http://www.scotusblog.com/wp/akin-gumps-supreme-court-summary-memo/
"Seven circuits had all of the[ir] decisions reversed" is wrong. No circuit had all of its decisions even reviewed, much less reversed. An accurate assessment would be that seven circuits had a few decisions reviewed, and of those few, all were reversed. And while it's technically true that the Third, Seventh, and D.C. Circuits, had "all" of their reviewed cases reversed, it's not a particularly meaningful observation when you remember that each had only one case reviewed. The reversal or affirmance rate was bound to be 100%.
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ReplyDeleteOf course I meant all the cases which were reviewed were reversed. They can't be reversed it they weren't reviewed! That's clear from the context of the post and I'm sure no one was confused about that.
ReplyDeleteThe argument that the Ninth Circuit has too many cases reversed is by necessity based on the reversal rate of the cases reviewed. It is a very small percentage of the Court's entire output. It is also not surprising that the Ninth Circuit has more cases reviewed as it has the largest caseload. My point, which I take you agree with, is that the liberalism or conservatism of a circuit cannot be determined by looking at what happens to the very small number of cases it has reviewed by the United States Supreme Court.
Thanks for reading, commenting and for catching my typo.