Friday, February 17, 2017

Is the Ninth Circuit Reversed 80% of the Time?

The President just said at his press conference that the Ninth Circuit decision on his travel ban Executive Order can be discounted because Ninth Circuit decisions are reversed 80% of the time by the U.S. Supreme Court. This is a point I am starting to hear from conservative pundits and tweeters. Is this true? Yes. Does it mean that the Ninth Circuit is out of the legal mainstream? Not at all.
This number is meaningless and quite misleading. You need to remember that the Supreme Court refuses to even hear the vast majority of cases from the Ninth Circuit (and other circuits for that matter). They only accept about 1% of all cases brought to them. As the Supreme Court website explains, they receive
approximately 7000-8000 petitions for writ of certiorari (the fancy Latin term for "hear my case"), but the Court only hears about 80 cases each year. In fact, a major part of my job as a law clerk was helping the Justice review the thousands of petitions in order to select the very few that would be heard by the Court.
This is true of the Ninth Circuit as well. In the 12 months leading up to March, 31, 2015, just under 12,000 cases were filed in the Ninth Circuit. Yet, the Supreme Court heard just 11 cases from the Ninth Circuit in 2015, reversing eight. Thus, given that so few Ninth Circuit cases are reversed by the Supreme Court, you could just as accurately say that the Supreme Court only reversed the Ninth Circuit less than 1% of the time.
And even looking purely at the reversal rate of the few cases accepted by the Supreme Court, the Ninth Circuit is not out of line with other courts. The Supreme Court rarely takes a case because it wants to affirm the lower court decision. What would be the point of that? Instead, the Court most often accepts cases if a majority of the Court has some doubts about the lower court decision. This results in the Supreme Court reversing far more often than affirming. In fact, the Supreme Court reversed about 70% of the cases it took between 2010 and 2105. Among the cases it reviewed from the Ninth Circuit, it reversed about 79%--just a bit higher than average. (The percentage was only 67% last year.) The 6th Circuit (hardly a liberal bastion) was the most reversed with an 87% average.
In sum, the 80% reversal statistic may give some comfort to Trump, but if I were him, I would be a bit concerned that the Supreme Court declines to reverse the Ninth Circuit more than 99 percent of the time.

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