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September 6, 2007

How does the Ninth Circuit fare at the Supreme Court?

Posted by David Postman at 11:44 AM

Ninth Circuit Court Judge Sidney Thomas is trying to quash the perception that his circuit is the most reversed in the country. Thomas, who is moderating a panel reviewing the Supreme Court term, came prepared with years of statistics that showed other circuits, with a fewer number of cases, having very high — even 100 percent — reversal rates at the Supreme Court.

"We're not the most reversed. Period," he said. He said reversal rates are unimportant, except that they are used in the argument for breaking up the court.

U.C. Davis law professor Vik Amar said it's not just the high number of reversals that are meaningful, but the number of cases the high court hears from the West. "The Ninth Circuit is over represented on the Supreme Court docket year after year," he said. The other issue, which Amar said is a "better metric" of Ninth Circuit performance, is how many of those reversals are by unanimous or overwhelming vote of the Supreme Court. And it turns out that the Ninth Circuit is overturned often by 9-0 or 8-1 votes, he said. That "helps shape the perception" that the Ninth is the most reversed court in the country.

Ninth Circuit Judge Jay Bybee said that a high reversal rate has no effect on his work "in terms of disciplining my opinions." But he does believe "we have a bit of a target on our back." He said the Ninth Circuit was always a favorite topic for jokes and satirical skits at annual reunions former Chief Justice William Rehnquist held for his clerks.

Amar suggested that part of the problem may be with the impression of the Ninth Cricuit among students in Ivy League law schools. Those are the people who become Supreme Court clerks and, Amar said, their preconceived notions about the Ninth can bubble up to influence which cases the Supreme Court decides to hear.

Maybe the Ninth Circuit needs a PR offensive aimed at Harvard and Yale law students. Spring break in Hawaii?

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