As the Supreme Court nears the completion of its current Term, it is interesting to explore the track records of the courts whose decisions the Justices reviewed.
Most of the approximately seventy-five cases the Justices hear and decide each Term come from the federal appeals courts, which are divided into twelve regional circuits that cover the country, including one for the District of Columbia. Cases also come from a specialized U.S. Court of Appeals for the Federal Circuit in Washington, D.C., which hears – among other issues – appeals in patent and international trade cases and some money claims filed against the federal government. Appeals also are filed from state courts and on rare occasions from a federal district court.
The federal appeals courts have varying reputations for being more liberal or more conservative, for reaching decisions that may put them in conflict with those of other circuits, for crafting opinions that are truer to Supreme Court jurisprudence or that show more independence, or sometimes just for deciding issues that may be a matter of first impression. While any of these factors may play a part in how often the Supreme Court reviews the decisions of a particular circuit, and how often that review leads to affirmance or reversal, the most important influence on whether Supreme Court review is granted is the existence of a conflict among different circuits over how to interpret a section of a federal statute or a constitutional provision.
It has become common for the Supreme Court to reverse the rulings of lower courts at a higher rate than at some times in the past. Using the SCOTUSblog statistics for the current Term and the three preceding years, the Justices reversed the lower courts in 70.5% of the decided cases. But the balance between reversals and affirmances has sometimes been less lopsided. In the 1980s, for example, when the Justices decided about twice the number of cases each Term, the percentage of reversals was close to 50-50 in two different Terms, below 60% in two other years, and exceeded 70% only once. Today, the message is unambiguous that the Justices generally agree to hear cases in order to reverse the previous ruling.
With the Supreme Court generally predisposed to reverse, how do the individual circuits fare?
The Justices have long had a seemingly contentious relationship with the Ninth Circuit, which covers most of the western United States and Hawaii and Alaska. Far more cases come to the Court from the Ninth Circuit than any other court, and — not surprisingly — Ninth Circuit rulings make up a sizeable portion of the docket of argued and decided cases – 75 cases, or 25.7% for the last four Terms including the current session. During that period, the Court has reversed or vacated and sent back 79.5% of the Ninth Circuit decisions it has reviewed.
The high volume of cases and the high reversal rate have long fueled the image that the Ninth Circuit is often out of step with the Supreme Court. Implicit in this critique is that the Ninth Circuit is more liberal than the increasingly conservative Supreme Court. While this may sometimes be true, the record is not always explainable in such terms. Consider one recent example: by a vote of eight to zero, the Justices reversed the Ninth Circuit decision in POM Wonderful LLC v. Coca-Cola Co.; in doing so, they rejected not only the lower court’s resolution of two conflicting statutes, but also the Justice Department’s view. The Ninth Circuit opinion which was reversed was written by Judge Diarmuid O’Scannlain, an appointee of President Reagan, and was joined by Judge N. Randy Smith, an appointee of President George W. Bush, and Judge Dorothy Nelson, who was appointed by President Carter. The case counts in the reversal column but is hardly an example of an ideological rift between the circuit and the Supreme Court.
Reversals of the Ninth Circuit that resolve circuit splits may also be difficult to count properly in the total record of the circuits, as a new article by University of Houston law professor Aaron-Andrew P. Bruhl suggests. It is sometimes the case for the Ninth Circuit and for others that a reversal in a circuit split counts as a negative for that circuit but not for other circuits whose decisions may also be effectively overruled by the Supreme Court’s resolution. Conversely, it’s possible that the Supreme Court could indirectly affirm a holding by the Ninth Circuit – by, for example, reaching the same conclusion as the Ninth Circuit in a case originating from some other circuit – but the Ninth Circuit would not get “credit” for that result in most statistics that track the resolution of circuit splits.
Still, it is hard to ignore the sheer volume of cases and reversals that involve the Ninth Circuit.
There are other patterns that emerge in the four-year statistics for the Court’s decisions. The poorest records, albeit based on much less volume, belong to the Eighth and Sixth Circuits. With only eight cases reviewed, the Eighth Circuit was reversed 87.5% of the time – only one case was affirmed. The Sixth Circuit was reversed 87% of the time with three affirmances and twenty reversals. In each of the last four Terms, both of those courts stayed above the average reversal rate of 79.5%. Here, too, though, it would be hard to attribute the differences between the Court and the circuits to anything more than different approaches to often complex issues.
One place where the Supreme Court may be trying to send a message is to the Federal Circuit, where the reversal rate has been 66% during the four-year period. The Justices have been preoccupied of late with disagreeing with the Federal Circuit’s interpretation of the patent laws. So far this Term, the Court has reversed the Federal Circuit 83% percent of the time — in five out of six cases; in the three preceding years, there were nine reversals and six affirmances. Some commentators have suggested that the message the Court is trying to send to the Federal Circuit is to read federal laws in a way that more narrowly limits patent rights.
Are some circuits faring better than others? The answer is yes, but since the Court is so heavily disposed to taking cases to reverse, even the circuits with positive records have mixed results. The Seventh Circuit has the best percentage for the past four years: a 57% rate of affirmance, or eight affirmances and six reversals. For two of those four years, though, reversals slightly outnumbered affirmances. The Fourth Circuit is close behind the Seventh, with an affirmance rate of 54% — seven affirmances and six reversals.
For the remaining circuits, here are the reversal rates for the four-year period: First Circuit, 58%; Second Circuit, 60%; Third Circuit, 68.5%; Fifth Circuit, 71.5%; Tenth Circuit, 50%; and Eleventh Circuit, 81%.
The Supreme Court’s approach to state court decisions holds to the same pattern. Over the four-year period, the Justices reversed state court decisions 72% of the time, with eleven decisions affirmed and twenty-eight reversed.
It remains the case, as Justices have declared over the years, that the role of the Supreme Court is not to try to correct every error they find in petitions to review lower court decisions. But the statistics suggest that when the Justices do decide to review a decision, the result with some frequency yields a different view of the law than what the lower court saw. For the federal courts of appeals, this means accepting the fact that more often than not, Supreme Court review means a reversal.
[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel to POM Wonderful in its case against Coca-Cola. However, the author of this post is not affiliated with the firm.]