Yawn.

As usual God, is in the details. And Lib***ls are in the fuzzies.

From the Center For Individual Freedom

U.S. Supreme Court Keeps a Watchful Eye on the 9th Circuit

Long considered the federal court breeding ground for judicial activism, the 9th Circuit has been the federal appeals court most often overturned by the U.S. Supreme Court in recent years. And, as shown by statistics compiled by the Center for Individual Freedom Foundation, the High Court’s recently completed October Term, 2002, proved to be no exception to the 9th Circuit’s disfavored place amongst the justices.

Of the 80 cases the Supreme Court decided this past term through opinions, 56 cases arose from the federal appellate courts, three from the federal district courts, and 21 from the state courts. The court reversed or vacated the judgment of the lower court in 59 of these cases. Specifically, the justices overturned 40 of the 56 judgments arising from the federal appellate courts (or 71%), two of the three judgments coming from the federal district courts (or 67%), and 17 of the 21 judgments issued by state courts (or 81%).

Notably, the 9th Circuit accounted for both 30 percent of the cases (24 of 80) and 30 percent of the reversals (18 of 59) the Supreme Court decided by full written opinions this term. In addition, the 9th Circuit was responsible for more than a third (35%, or 8 of 23) of the High Court’s unanimous reversals that were issued by published opinions. Thus, on the whole, the 9th Circuit’s rulings accounted for more reversals this past term than all the state courts across the country combined and represented nearly half of the overturned judgments (45%) of the federal appellate courts.

The federal courts of appeal decide roughly 30,000 cases per year, as reported in statistics compiled by the Administrative Office of the U.S. Courts. Of these, the 9th Circuit decides roughly 17%, making it by far the busiest and largest appellate court. But even more surprising than the frequency and number of cases before the 9th Circuit is the frequency with which the U.S. Supreme Court reviews decisions issued by that particular federal appellate court.

Many legal experts attribute the High Court’s frequent review of 9th Circuit decisions to that court’s staggering size — with a full complement of 28 judges, the 9th Circuit has more judges than any other federal appellate court and exercises jurisdiction over California, Oregon, Washington, Arizona, Montana, Idaho, Nevada, Alaska, Hawaii, Guam and the Northern Mariana Islands. But if the 9th Circuit’s gigantic caseload is to explain away its record in the U.S. Supreme Court, then the frequency of review and reversal should at least correspond to its size and the percentage of federal appellate cases it hears. Unfortunately, this is not the case.

Although the 9th Circuit’s caseload comprised approximately 17% of the federal appellate cases terminated in the year ending March 31, 2002, its decisions accounted for close to half (43%) of all the federal appellate decisions reviewed by the Supreme Court this past term. Comparatively, the 5th Circuit decided nearly 14% of federal appeals cases, but accounted for only 5.4% of the Supreme Court’s docket. The third largest federal appeals court, the 11th Circuit, accounted for nearly 13% of federal appellate caseload, but only 7.1% of the cases decided by the Supreme Court originated there.

This means that, on average, a case from the U.S. Court of Appeals for the 9th Circuit was more than twice as likely to be reviewed and produce a written decision by the U.S. Supreme Court than was a case from the other federal appeals courts. By contrast, a case from the second busiest circuit, the 5th, was nearly a third less likely to be reviewed and decided by the High Court than the average federal appellate case.

It is true that the overall reversal rate of the 9th Circuit (75%) was lower than that of other federal appellate courts — most notably the 4th, 5th, 8th and 10th Circuits, which were all reversed 100% of the time this past term. Yet these “complete” reversal rates are likely due to much less frequent review of those circuits by the U.S. Supreme Court. Specifically, the High Court decided only eight cases from the 4th, 5th, 8th and 10th Circuits combined (three from the 4th, three from the 5th, one from the 8th, and one from the 10th), compared with the 24 cases the Supreme Court took up from the 9th. Thus, the 9th Circuit’s lower overall reversal rate does not demonstrate the justices’ greater agreement with the decisions of the 9th Circuit, but is likely attributable to that circuit’s much higher review rate. Such a conclusion is only reinforced by the fact that the more than half (57%, or 8 of 14) of the federal appellate decisions the Supreme Court unanimously overturned came from the 9th Circuit. This means that a full one-third (8 of 24) of the 9th Circuit cases decided by the High Court were unanimously overturned.

These continuing negative trends are certainly not reflective of the competency of the 9th Circuit’s entire bench, which includes some of the most respected appellate judges in the country. It is, however, indicative of a judicial philosophy to which some 9th Circuit judges adhere. Specifically, in pursuing political and policy preferences at the expense of established precedent and textual commands, some 9th Circuit judges seem to invite review and reversal by the U.S. Supreme Court. Until that changes, it is likely the justices will keep a watchful eye on the federal appeals court out West by continuing to review and reverse a disproportionately large number of 9th Circuit decisions.

From the New York Times

Inconsistency is hallmark of 9th Circuit Appeals Court rulings
By Adam Liptak
THE NEW YORK TIMES

Over the last 20 years, the 9th U.S. Circuit Court of Appeals has developed a reputation for being wrong more often than any other federal appeals court.

In recent years, in cases involving medical marijuana, assisted suicide, disabilities and more mundane issues, dozens of the court's decisions have been reversed unanimously by the Supreme Court.

"In the 1996 term, for example, the 9th Circuit was reversed in at least 24 cases - a staggering number - and at least 16 of them were 9-0 reversals," Akhil Amar, a law professor at Yale, wrote in an online commentary. "When you're not picking up the votes of anyone on the court, something is screwy."

The 9th Circuit may be facing yet another reversal. On Wednesday, it touched off an avalanche of criticism by pronouncing the Pledge of Allegiance unconstitutional.

While the court is famously liberal, critics attribute its record in the Supreme Court more to its unwieldy size than to ideology.

It is by far the largest federal appeals court. At full strength, it has 28 judges, almost twice as many as the next biggest circuit. Its decisions affect a fifth of the nation's population and a third of its land, in nine states and two territories.

Size gives rise to confusion

Of the court's 23 active judges, 17 were appointed by Democratic presidents. That makes it "vastly more liberal than most other courts of appeals, and certainly the Supreme Court," said Eugene Volokh, a law professor at UCLA.

But Mark A. Perry, an appellate lawyer in Washington who was a clerk for a 9th Circuit judge, said ideology does not account for the court's track record.

"Size gives rise to conflict and confusion," he said. "There is no consistency."

Richard A. Posner, a federal appeals court judge in Chicago, devoted a law review article to proving statistically that the 9th Circuit's size predisposes it to "judicial irresponsibility."

The court's size has led to periodic calls for dividing it. In 1997, Congress created a commission to consider the issue. Its chairman was Byron R. White, who had retired from the Supreme Court a few years before.

The records of the White Commission include frank discussions by Supreme Court and 9th Circuit judges of the court's shortcomings.

For instance, judges on the court said they did not have time to read all of the decisions it issued.

According to the commission's 1998 report, 57 percent of judges in the 9th Circuit, compared with 86 percent of federal appeals court judges elsewhere, said they read most or all of their court's decisions.

"The 9th Circuit issues too many decisions for anyone to read," wrote Judge Andrew J. Kleinfeld, who was appointed by the first President George Bush. "Judges on the same court should read each other's decisions. We are so big that we cannot and do not."

"Put bluntly," wrote Judge Diarmuid F. O'Scannlain, who was appointed by President Ronald Reagan, "it becomes difficult to know what our circuit's law is."

Separate divisions considered

The court's chief judge, Mary M. Schroeder, who was appointed by President Jimmy Carter, defended it in an interview. "We have evaluated, and we have studied," she said, "and we have not been able to document issues that are directly attributable to the size of the court."

In his study, Posner considered how often the Supreme Court had reversed the 9th Circuit in a way that suggested simple error by the lower court, as opposed to a principled disagreement on a knotty legal question.

Sometimes the Supreme Court reverses lower courts summarily.

This means, Posner wrote, that the lower court "got the issue so clearly wrong that there is no need for the illumination of the issues that briefing and argument would afford."

Other times, the Supreme Court reverses unanimously. That means, Posner wrote, that the decision was "more likely to be just plain incorrect, rather than being merely the reflection of political difference."

By both measures, the 9th Circuit was wrong more often than any other circuit in the dozen years Posner surveyed, though 1997.

Posner concluded that "problems of quality control indeed increase with the size of the circuit."

The White Commission recommended that the 9th Circuit be divided into largely autonomous divisions. Legislation along those lines was proposed but not adopted.

The 9th Circuit covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, along with Guam and the Northern Mariana Islands.

The judges have chambers throughout the circuit and meet only rarely. Assuming 28 judges, there are more than 3,000 possible combinations of three-judge panels. But the active judges rely heavily on more than 20 senior judges, and panels often also contain visiting judges.

Critics say the 9th Circuit's procedure for full-court review accounts for much of the reversal rate. All other circuits sit as one to hear full-court, or en banc, cases. The 9th Circuit sits in panels of 11.

Full-court hearings increase

The procedure injects randomness into decisions. If a case is decided 6-5, there is no reason to think it represents the views of the majority of the court's 23 active members.

"If you run a judicial process as a crap shoot," Kleinfeld wrote, "the crap shooter's principles will affect the outcomes."

In 1998, Justice Sandra Day O'Connor complained that the 9th Circuit did not use even this flawed procedure enough. She wrote that the court had heard only eight of 4,481 cases en banc in the previous year. In that time, the Supreme Court addressed 45 cases from the 9th Circuit.

That has since changed.

"The 9th Circuit is now more likely to grant en banc review than any other circuit," said Tracey George, a law professor at Northwestern University.

"Our readers don't give a rat's ass about what you think. They want facts."

Elmore Leonard, 'The Hot Kid'.

Man, can't you ever be truthful? Just once?

Too subtle?

You wouldn't know subtlety if it crapped on you from a thousand feet. And you're as transparent as Joe Biden's mind. It's sad, really.

What you actually mean is you do use labels when it suits you.

So it's the old 'well, I don't believe in conservative versus lib***l labels, but if I did, well then the figures I show prove that lib***ls are in fact better anyway.'

Oh please, get over yourself. Adjust that to "too idiotic" and I'll accept your apology.

"Our readers don't give a rat's ass about what you think. They want facts."

Elmore Leonard, 'The Hot Kid'.