Posted by Jonathan Adler:
In Defense of the Ninth Circuit:
http://volokh.com/archives/archive_2007_07_15-2007_07_21.shtml#1184633750
Richmond attorney Cullen Seltzer [1]rises to the defense of U.S. Court
of Appeals for the Ninth Circuit in Slate:
As proof of the 9th's judicial failings, the critics generally
stress the court's extra-high rate of review and reversal by the
Supreme Court. The numbers, though, tell a less damning story than
the alarmist portrayals of the court. . . .
yes, 9th Circuit cases were disproportionately represented in the
Supreme Court. Since caseload and population would predict a review
rate of 18 percent to 20 percent, the justices heard between one
and a half times and twice as many cases from the 9th as would have
been expected. But because the Supreme Court's docket is small, the
number of "extra" cases from the 9th is also small: nine for the
last term. That's a substantial part of the Supreme Court's docket,
which totaled 73 cases last year, 64 of them from the federal
courts of appeals. But nine cases represents only 0.1 percent of
the 9th Circuit's 6,387 on-the-merits decisions for the 12 months
ending in September of 2006. That's a fair measure of judges going
nutty only if you think that 0.1 percent is statistically
interesting. . . .
let's look at how often the Supreme Court decides that the 9th got
it wrong. Last term, the Supreme Court's reversal rate for 9th
Circuit cases was 90.5 percent. Yikes�that's huge! But wait, for
on-the-merits cases, the Supremes reversed the 3rd and 5th Circuits
all of the time last term. Cases from state appellate courts fared
no better: They also had a 100 percent reversal rate. Overall, this
past term the Supreme Court reversed 75.3 percent of the cases they
considered on their merits. The pattern holds true for the 2004 and
2005 terms as well, when the Supremes had overall reversal rates of
76.8 percent and 75.6 percent, respectively. For those years, the
9th was reversed 84 percent and 88.9 percent of the time, or about
a case or two more each year than it would have been if it had
conformed to the reversal rate of the other circuits. How do one or
two cases a year add up to a court run amuck?
It's also not necessarily the case that a higher reversal rate by
the Supreme Court means that an appeals court is doing a bad job.
The lower court judges may be bad at predicting what the Supreme
Court will approve or disapprove. Or they may not care: They may
want to test an idea or take a stance that's at odds with the
current direction of the Supreme Court. Or they may perceive that
existing law, as previously dictated by their own circuit or by
earlier Supreme Court decisions, requires a certain outcome, even
as they understand the justice may change that law if they take the
case for review.
([2]LvHB)
References
1. http://www.slate.com/id/2170477/
2. http://howappealing.law.com/071607.html#026942
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