March 31, 2014

From time to time people erupt about the Ninth Circuit, formally the United States Court of Appeals for the Ninth Circuit. It hasn’t happened often lately, but like the swallows of San Capistrano and General MacArthur, it will return!

The entire country is divided into 12 federal judicial circuits. Eleven encompass all of the states and territories, and there is the D.C. Circuit in Washington. The appellate courts for these 12 circuits handle all federal court appeals, with limited exceptions.

The Ninth Circuit is the largest circuit, by area and population. The circuit includes Arizona, Nevada, Idaho, Montana, Washington, Oregon, California, Alaska, Hawaii, Guam, and the Northern Mariana Islands. Eleven states and territories, a huge landmass, and lots and lots of people! (More than 70,000,000 people live within the Ninth Circuit boundaries, more than 20% of all of us.)

The case can be made for dividing the Ninth Circuit. Three-judge panels hear federal appeals. Occasionally, a federal appellate court grants en banc (the whole court) review, which almost always occurs, if at all, after the three-judge panel rules. Circuits with more than 15 judges can make en banc more than three and less than all. In the Ninth Circuit en banc review involves 11 judges. (The court website identifies 27 Circuit Judges and an additional 16 judges who have achieved senior status. There are also two vacancies.) Thus, and because of the size of the circuit, no one ever gets the thinking of the entire Ninth Circuit bench. And with so many judges, opportunities for conflicts among decisions of three-judge panels are great.

The Ninth Circuit encompasses very disparate areas, including the most populated state in the country (California, which has more than 50% more people than No. 2 Texas) and three of the least populated states (Montana, Alaska, and Wyoming). Judges who practiced in Anchorage, Billings, or Laramie are not likely to know much about high finance issues that might arise from a Los Angeles or San Francisco case, while a judge from San Francisco may know very little about Alaska pipeline or mining issues.

Anyway, size and geographical disparities are rarely offered as a basis for splitting the circuit. Instead, the case is most often made for splitting the Ninth Circuit because it’s full of liberal judges, and because the Supreme Court reverses too many of its decisions. “It’s a California, land of fruits and nuts, thing” explains the thinking. (Almost half of the judges have their chambers in a state other than California.)

Here are some facts. (Statistics come from In 2012-13 the Supreme Court took review on 14 Ninth Circuit cases, 18% of all of the cases it accepted for review and decided on the merits, and four more than it took from the Second Circuit. (The Second Circuit includes New York, and in many years it also tends to generate lots of cases for Supreme Court review.)

And the reversal rate? The Court reversed in 12 of the 14 Ninth Circuit cases, for an 86% reversal rate. Big deal? Not so much, as the Court’s overall reversal rate was 72%. Generally, the U.S. Supreme Court and state supreme courts that control their dockets accept cases for review when they think the lower court has erred. Courts don’t often take cases—again, I’m focused on courts that can accept or decline the opportunity to review a lower court decision—to say “good job, y’all were right on that one,” although it does happen. So, expect a high reversal rate when you look at Supreme Court practice.

[I looked at the prior few years, and got lost in the numbers and years. Still, lots of Ninth Circuit cases getting review, relative to other circuits, and lots of reversals.]

Yes, Ninth Circuit cases make their way to the U.S. Supreme Court. I’m no statistician—I became an attorney because I couldn’t pass a math or science class—so I can’t determine the statistical significance of the percentage of cases coming from the Ninth Circuit, but I think the size of the circuit explains the phenomenon, mostly if not completely. And the Court does reverse the circuit, but not in percentages much higher than the outcomes from other circuits. Further, the Supreme Court issues opinions in about 80 cases per year, and for most circuits only one or two cases get accepted for review. In sum, it seems like there’s not much to see here. So, next time you encounter a Ninth Circuit splitter, push back!

“And why,” you ask, “did [I] bother writing about this issue?” Well, I used to pal around with some guys who occupied the universe to my right—lots of room over there—and they mouthed off from time to time about the Ninth Circuit, surely in the main to get my dander up! Good guys, but often a little bit mistaken! I thought about those guys recently, and got curious. “Maybe they were right and I was wrong,” I thought. Nope! (I’ve also wanted to post a piece titled Snoozer! to see if anyone reads it.


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