In the past few years a great deal of attention has been lavished on the Supreme Court treatment of the Ninth Circuit. Articles with titles like “U.S. Supreme Court again rejects most decisions by the U.S. 9th Circuit Court of Appeals” or “Take a Hint? Supreme Court Rejects 5 Rulings in a Row from West Coast Bench.” There is a blog called the 9th Circuit Watch and on its front page it details the reversal rate of the 9th over the past few Supreme Court terms. Many of these articles are from 2011, but reputations have lasting effects. As the ‘most liberal’ circuit in the federal system, it is an easy target for such scrutiny. As the largest circuit in the federal system, it is an easy target for such scrutiny. But is such scrutiny deserved?
SCOTUSblog has just released a partial Statpack for the October 2012 term. As expected the 9th Circuit tops the Court of Appeals for number of cases docketed and decided thus far—12 cases docketed and 7 decided already. And the affirmation rate is not high—14%. So, it seems that the 9th Circuit is still living up to its reputation for ‘getting it wrong’. However, the 3rd Circuit, with 6 cases docketed and 4 already decided, has faired worse. Its reversal rate is 100%. The 11th circuit (6 cases docketed and 3 decided), the 5th Circuit (7 docketed; 2 decided), and the 7th (3 docketed; 2 decided) all have 100% reversal rates thus far. In fact, only the D.C. Circuit (3 docketed; 2 decided) and the 4th Circuit (5 docketed; 3 decided) have a batting average of 500 or better. Overall, the reversal rate thus far is 74%. While the 9th will likely remain the media’s favorite whipping circuit, the overall data reveal that the 9th is really not very different from its brethren and the Court, with its small docket of 74 cases for the year, is still practicing the error correction strategy.
As we close out the Spring term and start concluding our constitutional law courses, its important to remember the lessons from the start of the term as well. In Chapter 1, Epstein and Walker introduce students to judicial politics—the study of judicial behavior. Perhaps now is a good time to come full circle and remind students that the behaviors noted are in evidence today. The Court has issued unanimous decisions in 56% of its cases. Since the “more difficult” cases are often left to the end of the term, its likely that this number will be reduced and hit closer to the norm, between 35 and 45%. Not surprising, our swing justice, Justice Kennedy, has yet to write a dissenting opinion this term. So far, the Chief Justice has authored 5 opinions and all have been 9-0—perhaps revealing the secondary desire for the Chief Justice to maintain a solid Court whenever possible. And the workload of majority opinions is following the norms of equal work thus far as well. Roberts tops the list with 5 opinions and Alito and Kennedy are at the bottom with 3. What we know about the Court still holds and as our students finish up their constitutional law courses for the year, these lessons as well as the case law, will help them understand and follow the Court and its work without our assistance.