Should the Ninth Circuit be Judged by Reversal Rates?

July 22, 2011

Each year, Tom Goldstein, co-founder of the widely read SCOTUSblog, compiles and releases Supreme Court statistics. Last month, Mr. Goldstein released the final “Stat Pack” for the Supreme Court’s most recent October 2010 term with these results: The Court reversed or vacated seventy-nine percent of the decisions it reviewed. Circuits with the highest percentage of reversals included the Sixth Circuit (eighty-three percent) and the Fifth Circuit (eighty percent). The Ninth Circuit came in third at seventy-nine percent.

There is nothing remarkable about these figures. SCOTUS scorecards demonstrate that over time the Supreme Court will typically reverse or remand seventy to seventy-five percent of the cases it hears. Most (if not nearly all) circuits are reversed at levels well above the fifty-percent mark year after year.

What is interesting, though, is the reaction to these numbers – in particular, the media’s condemnation of the Ninth Circuit. Referencing the SCOTUSblog figures, the Los Angeles Times reported this week that “it was another bruising year for the liberal justices of … the 9th Circuit.” The American Bar Association agreed writing, “the Ninth Circuit took another beating from the United States Supreme Court this past term”.  Earlier in the year, media attacks on the Ninth Circuit were equally disapproving with headlines like “SCOTUS smackdown of the Ninth Circuit.”

The Ninth Circuit has been a media punching bag for many years, but looking at the SCOTUS figures, I wonder how much of the recent criticism is misplaced. In the October 2009 term, the circuit courts were reversed seventy-one percent of the time. That year, while the Supreme Court reversed eighty percent of Ninth Circuit cases, three other circuits plus the grouping of all appeals taken from state courts had higher reversal rates. The year prior, during the 2008 term, the Ninth Circuit was reversed only sixty percent of the time, well under the seventy-six percent reversal rate for all cases. Seven other circuits that year had higher reversal rates than the Ninth Circuit; six of them were reversed at the one-hundred percent level.

If it’s the numbers speaking, why isn’t the story about the much higher reversal rates we see out of the Fifth and Sixth Circuits?  Why has no one written about the propensity of the Supreme Court to turn back state Supreme Court decisions which, in this past term, were reversed at a rate of one-hundred percent?  Are we to discount the importance of the five Ninth Circuit opinions upheld by the Supreme Court or disregard the reversals by a narrow 5-4 split?  

Commentators who question using reversal rates as a benchmark for court performance point out that the Supreme Court reviews only a very tiny percentage of the total number of circuit court decisions.  Drawing generalization and creating themes from such a small sampling would be an imprecise science at best, misleading at worst. Furthermore, because circuit courts are comprised of judges who occupy every corner of the ideological spectrum, reaching consensus has more to do with the make-up of a particular panel than anything else.   

The Times points out that while seventy-nine percent may not be unusual in terms of past records, twelve of the reversals this year were unanimous which, it argues, may indicate that the Ninth Circuit is more “often out of step with even the high court’s liberal justices.”  But implicit in this remark is an assumption that Supreme Court opinions, even if unanimous, are somehow more “correct” – certainly, a debatable conclusion.   

In my reading about reversal rates I found two articles of particular interest:  The first, a recent essay by Diarmuid F. O’Scannlain of the Ninth Circuit, widely considered the that court’s most conservative jurist, decries Ninth Circuit reversal statistics (the Ninth Circuit’s record is “strikingly poor”), but raises some interesting questions about whether nominal percentage differences between circuits should mean anything.  The other article (76 MOLR 315) raised what I thought an interesting approach to judging our judges: instead of using reversal statistics as a measuring stick, why not measure performance according to the mix of positive and negative citations to legal opinions.  For more on this, see Judging the Judges in Research References below.

RESEARCH REFERENCES

General: Those interested in reading more about Supreme Court reversal rates and the role of judicial statistics, might consider a structured search in WestlawNext along these lines:

circuit court” “supreme court” “ninth circuit” /50 (reversal /2 rate) /100 statis!

Circuits by Supreme Court Term: The Court’s term runs from the first Monday in October to the first Monday of October the following year.  The synopsis of the Supreme Court case will reference the origins of the case as well as the Court’s holding.   So, to approximate the research discussed in this article, try the following in the SCT database:

da(aft 09/03/2009 and bef 10/04/2010) and sy(ninth-circuit)

Judging the Judges:

For this analysis we’re picking on Alex Kozinski.  To perform an analysis of positive/negative citations recommended by the Missouri law review referenced above, we began with a search in opions by Kozinski from 2010 forward: In CTA9, try ju(kozinski) and da(aft 2009).  Then, we downloaded  just the citations to Word.  We ran this word document through WestCheck for Cases and Negative History only.  Call the Reference Attorneys if you’d like us to walk you through this process.  The sample report is here: Kozinski. (Note: This Word document is about 90 pages long.  The obvious benefit of reversal rates, is that they are a convenient snapshot.)

Reversal reports are available for individual judges from Profiler-WLD databases.  Find the table for Appeals of Decisions BY (not TO) Judge.