Would Splitting the 9th Circuit Reduce Its Reversal Rate?
This post was written by Ben Winograd, with research assistance from Adam Chandler and Jason Harrow.
In Wednesday’s Los Angeles Times (link here), Brian T. Fitzpatrick, a Vanderbilt law professor and former clerk to Justice Scalia, notes that the 9th Circuit was reversed more than any other court last term, and argues that splitting the circuit in half could reduce the overall number of decisions that would be appealed to – and presumably overturned by – the Supreme Court. Why? Because the types of decisions reversed in Washington typically are the result of a few ‘extreme’ judges, Fitzpatrick says, splitting the circuit in half would statistically reduce the number of panels on which such judges constitute a majority. To demonstrate his point, he writes:
“Consider a hypothetical court of 28 judges (the number of active judges currently on the 9th Circuit), in which six of the judges are extreme. The probability of such a court randomly selecting a panel with at least two extreme judges is almost 11%. But if it were divided into two courts — each with 14 judges, three of whom are extreme — that probability falls to 9%.
A difference of 1% or 2% may not seem like much, but the 9th Circuit decides more than 6,000 cases every year. This means that if the 9th Circuit is anything like my hypothetical court, splitting it in half would save 60 to 120 appeals a year from being decided by panels with a majority of extreme judges.”
Of course, as our colleague David Stras points out, the hypothetical only holds so long as all ‘extreme’ judges either are liberal or conservative – because on a panel including both an ‘extreme’ liberal and ‘extreme’ conservative, the ideologues presumably would cancel out one another. More, given the size of California, it would be all but impossible to split the 9th Circuit into two equally-sized courts (unless Congress opted to divide the state). But even making these assumptions, one still could not guarantee that the so-called ‘extreme’ judges would be distributed evenly between the new courts. Under Fitzpatrick’s example, it also is possible that four of the ‘extreme’ judges would be assigned to one circuit and two to the other; five to one and one to the other; or six to one and none to the other. We crunched the numbers taking those possibilities into account, and our calculations are available here (PDF file).
In our table, Column A contains the aforementioned ways the ‘extreme’ judges could be distributed, whether 3-3, 4-2, 5-1 or 6-0. Column B represents the odds of each such distribution. Column C represents the combined odds an ‘extreme’ panel would be randomly assigned in one of the new circuits, using Fitzpatrick’s definition as a panel with two or more ‘extreme’ judges. Below Column C is a weighted average representing the overall odds an ‘extreme’ panel would be assigned should Fitzpatrick’s hypothetical circuit be divided – but not knowing how the ‘extreme’ judges would be distributed. Finally, Column D shows the number of ‘extreme’ panels that would be assigned per every 6,000 cases.
As the figures show, Fitzpatrick is correct that, if the ‘extreme’ judges were divided evenly, the odds of two or more being assigned to the same panel would drop from 10.68% to 9.34%. However, the chances they would be evenly distributed are only slightly above one in three. The more likely scenario (with odds of nearly one in two) entails four ‘extreme’ judges going to one circuit and two to the other. In that case, the combined odds of an ‘extreme’ panel hearing a case randomly assigned to one of the new circuits would drop only to 10.44%, essentially the same as the status quo. The odds of one circuit receiving five or all six ‘extreme’ judges are much smaller – about one in seven and one in 60, respectively. But if that were to occur, the combined odds of an ‘extreme’ panel selection would rise dramatically. If five went to one circuit, they would rise to 13.74%. If all six went to one circuit, the figure jumps to 19.23%.
But perhaps the most important figure is the weighted average of all these possibilities, for if Congress was to split the 9th Circuit, one cannot know for certain how the so-called ‘extreme’ judges would be distributed. And given that uncertainty, the odds of facing an ‘extreme’ panel are exactly the same under Fitzpatrick’s hypothetical – after taking all possible distributions into account – as they are at the present time. (Note the weighted average, representing the odds of an ‘extreme’ panel assignment under Fitzpatrick’s hypothetical, is equal to the first figure in Column C, representing the present odds.) In sum, then, while other compelling reasons may exist for splitting the Ninth Circuit, reducing the odds of facing an ‘extreme’ panel does not appear to be one of them.
(See below for a response from Brian Fitzpatrick.)
It is with a bit of amusement that I read the commentary about the extremist judges on the 9th Circuit. In stead, gerrymandering the 9th Circuit to get results more favorable to the writers viewpoint, let me suggest that the real problem is with the four extremists sitting on the Supreme Court — Chief Justice Roberts and Associate Justices Scalia, Thomas and Alito.
In my April 25th blog, Gonzales v. Carhart – The Dread Scott Decision of Our Time, I conclude by saying: “The bottom line is that Carhart should be viewed as the Robert’s Court attempt to give Roe a slow, but certain death. It is the Dread Scott Decision 12 our time. Totally OUTRAGEOUS.” Morse v. Frederick and Hein v. Freedom From Religion Foundation are similary bad decisions. Add your own to the list.
It might make sense to divide the 9th Circuit because of its size — with California being such a populous state — but the problem with reversal on appeal lies with a bad court composition at the top.
Bob Ritter
Founder,
Jefferson Madison Center for Religious Liberty
Comment by Noblestarr — July 12, 2007 @ 3:30 pm
An even split is almost impossible.
More than 50 percent of the Ninth Circuit caseload comes from the Central District of California. This is more than the caseload of some other entire U.S. Court of Appeals circuits (e.g. the 1st Circuit). California as a whole accounts for about 63% of the 9th Circuit’s work, and about 13% of the number of appeals lodged nationwide. Most proposals furthermore, call for at least one other state to be included with California, leaving at least two-thirds of the cases on the California side of a 9th Circuit split.
Most 9th Circuit split proposals also hinged on making new appointments (which proponents then thought would be made by a Republican President), often disproportionately in the non-California part of the Circuit, allowing a Republican President to shape its formative ideology.
* * * *
Also, a split works two ways in terms of ideology.
One is the influence on the mix of sitting judges. The theory behind most split proposals is that liberal leaning judges, which are the reason that conservatives want to split the 9th Circuit, would disproportionately remain in the post-split portion of the court that includes California, while more conservative judges would disproportinoately end up in other circuits, mostly because judges appointed from seats “earmarked” for California would tend to stay in California.
In essence, most splitters accept that California, a liberal leaning state, will have a more liberal than average circuit, but want to free their more conservative states from its jurisdiction and the influence of its liberal judges.
The immediate impact would be, therefore, a smaller and moderately more liberal successor to the California portion of the 9th Circuit, while there would be a considerably more conservative non-California successor to the 9th Circuit (probably in a new 11th Circuit).
The other is the influence on future appointees. The portion of a small split 9th Circuit portion that contains California would likely have only Democratic Senators representing states in that portion, so they would object to the appointment of true conservatives, while allowing strong liberals to be appointed, under the limited form of Senatorial privilege that applies in U.S. Court of Appeals appointments.
In contrast, the non-California successor to a 9th Circuit would likely have a mix of Democratic and Republican Senators representing the states involved. As a result, going forward, Senatorial privilege objections would be raised towards both extreme liberal and extreme conservative candidates in that circuit, likely producing a middle of the road batch of appointees in negotiations with the President.
* * * * *
Of course, it is worth recalling that the high reversal rate of the 9th Circuit is greatly exaggerated by those who use absolute numbers of reversals and certiorari grants to make their case. The 9th Circuit is the largest circuit in the nation by a long shot, so even if it were moderately more in tune with SCOTUS than all other circuits, it would still have more cert grants and more SCOTUS reversals than any other circuit, simply because it handles more cases.
Adjusted for docket size, the 9th Circuit is only marginally more reversed by SCOTUS than the others, if at all.
Comment by Andrew Oh-Willeke — July 12, 2007 @ 3:40 pm
Brian is a good friend of mine and I respect his work greatly, but I disagree with him on this issue. The article relies on what I believe are unrealistic assumptions, as Ben’s post points out. And those assumptions, as unrealistic as they are, lead to only a 1.3% reduction in the overall number of extreme opinions!
I personally find the equal division of extreme judges among the two circuits to be the most troublesome assumption as I think Brian would say that most of the extreme judges can be found in California and all of them are liberal. If that is so, most of the proposals to split the Ninth Circuit have California paired with one (or at most two) other state(s). And because a “California plus” circuit would presumably have the greater caseload, I think it is probable that we would see more, not less, extreme opinions on the whole from the two new Circuits.
Having clerked on the Fourth and Ninth Circuits myself, I actually agree with Brian that the Ninth Circuit should probably be split, though I am not particularly passionate about the issue. It is so large that the circuit is unwieldy both to the judges (though many would disagree), the clerks, and the litigants. It seems that intracircuit splits are not uncommon in the Ninth Circuit, and part of the reason for that is its unwieldy size. I think there are other reasons to support a split as well, though I think that Brian’s argument is not one of them.
Comment by David Stras — July 12, 2007 @ 3:44 pm
“But even making these assumptions, one still could not guarantee that the so-called ‘extreme’ judges would be distributed evenly between the new courts.”
No need to speculate. The proposed split that passed the House at one point would have put California and Hawaii and the judges whose chambers are there in one circuit and all the others in another. The distribution of extreme judges would indeed be uneven. It’s not hard to see why persons of sense from those other states favor the proposal, but it would be a disaster for California and Hawaii.
There is also no need for the word “so-called” or for the quotation marks.
“…the hypothetical only holds so long as all ‘extreme’ judges either are liberal or conservative…”
As there are no extreme conservatives on the Ninth Circuit at present, I don’t see a problem here.
Andrew writes, “Adjusted for docket size, the 9th Circuit is only marginally more reversed by SCOTUS than the others, if at all.”
Even adjusted for its docket size, the Ninth is reversed unanimously or nearly so considerably more often than other circuits. That is far more important than total reversal rate in gauging when a court is out of the mainstream.
Comment by Kent Scheidegger — July 12, 2007 @ 3:46 pm
I enjoyed this post and am impressed by all of the number of crunching. I think a few clarifications are in order.
First, my claim that smaller circuits would lead to less extreme panels was made under the assumption that everything else about the new and old circuits would be equal–including the percentage of judges on the courts that are extreme. As Ben ably demonstrates, if everything else is not equal, if the percentage of extreme judges is not held constant, then the probability of drawing an extreme panel may or may not decrease. The original draft of the OpEd actually made this explicit, but we dropped it because we thought it was implicit and had to cut the word count down.
Second, although the example I used was splitting the circuit evenly, the claim I am making does not depend on that. Many people, for example, think it is difficult to split the circuit exactly in half unless you cut California in half, which most are loathe to do. But even if you split the court 2/3 and 1/3, if the percentage of extreme judges is held constant on each court, the probability of drawing an extreme panel is reduced. Again, smaller courts are in general better than larger ones on this metric, even if the smaller courts are of different sizes.
With respect to the claims made in the post, I would make a few observations.
First, I have not read the comments by David referred to in the post, but I am not so sure that things change if the extreme judges we are talking about are not all from the same end of the political spectrum. For one thing, the probability of drawing a panel with three extreme judges is greater on larger courts (on the numbers in the example, the probability is over twice as large); in this case, two of three will necessarily be from one side of the political spectrum (to the extent we see this as a two-sided spectrum) and therefore able to form a majority among themselves. Similarly, on some of the panels with only two extremes, both of the extremes will be of the same political persuasion, leading, again, to an easy majority of like-minded extreme judges. But even when there are only two extremes and they are from different sides of the spectrum, I don’t think we can fairly conclude they will “cancel each other out.” In order to do anything on a court of appeals, you need two votes. Thus, the moderate judge is going to have to vote the same way as one of the extreme judges. Perhaps the two in the majority will meet halfway in a single opinion, perhaps they will not join one opinion and write separately, or perhaps they will lazily defer to whichever of the two has the writing assignment. In any of these cases, I think it can be fairly said that the panel is likely to produce a more opinion extreme than if there was only one or zero extreme judges on the panel.
Finally, with respect to the post’s final conclusion–that splitting the circuit will in fact have no effect on the probability of drawing an extreme panel–I note that this conclusion rests on two premises, neither of which are very realistic in my view. Ben assumes 1) that we don’t know how extreme judges will be distributed on the new circuits and 2) that the distribution will therefore be random. In the short term, I don’t think either of these assumptions is correct. We know who the extreme judges are now and we can split the circuit with that in mind. In the long term, I don’t think the second assumption is correct. Extreme judges are not randomly distributed throughout the federal judiciary. The President nominates and the Senate confirms judges not only based on whether they think the judge will be extreme or not, but also based on how many extreme judges are already on the circuit in question. This is why extreme judges always make up a minority of judges on any given circuit. In other words, using the numbers in column C of Ben’s spreadsheet, to believe that splitting the Ninth will have no effect on selecting extreme three-judge panels over the long term, I think you would have to believe that, for at least 16% of the life of the new circuits, the percentage of extreme judges on one court will be at least FIVE TIMES as large as the percentage of extreme judges on the other court. I just don’t think that is very realistic.
Of course, it may be just as unrealistic to assume as I do that the percentage of extreme judges will be held constant. There is a range in the percentage of extreme judges on the various circuits, and these ranges vary over time. Nonetheless, I tend to think that, on average and over time, the percentage of extreme judges will not vary all that much from circuit to circuit. And, as Ben’s numbers show, even if the percentage of extreme judges on one of the new circuits stayed TWICE AS HIGH on average as the percentage of extreme judges on the other circuit, you still get fewer extreme panels with smaller circuits.
If you play with the numbers for a while, I think you’ll see that most realistic–as opposed to random–distributions of extreme judges yield lower chances of drawing extreme panels with smaller circuits.
I should close by noting that I owe a debt of gratitude to this blog, as it would have taken me much, much longer to write the OpEd had I not been able to rely on Ben’s end-of-term statistics. So many thanks!
-Brian Fitzpatrick
Comment by Brian — July 12, 2007 @ 4:06 pm
Kent — O’Scannlainn is conservative, Bybee is a Bushie conservative, the two new Smiths seem pretty conservative, Schroeder is no liberal, Kozinski is libertarian (which got him reversed twice this year), Beazer is a geezer, Tallman is your kind of guy in your kind of case, so I don’t think you can say all the “extremists” are of one stripe. I think it is a fact that the more liberal judges work harder than the more conservative ones, you see them on so many more cases. But the thing to remember is that even the judges called liberal try to follow the Supreme Court in AEDPA, qualified immunity, stops and searches, PLRA, sentencing, what is an aggravated felony — again, your kind of thing. Perhaps there is a difference when it comes to competence of counsel, because there are some really strong public defender offices in the circuit and the judges have all seen what a difference competent counsel makes.
Comment by Roger Friedman — July 12, 2007 @ 10:00 pm
Roger, I don’t dispute that the judges you mention as “conservative” are, but none is extreme, so that is fully consistent with my point. No judge on the Ninth is as far to the right of the median as Reinhardt et al. are to the left, or even close.
“But the thing to remember is that even the judges called liberal try to follow the Supreme Court in AEDPA….” Oh, come off it. Do you seriously believe that the far left wing of the Ninth is really trying to follow SCOTUS on AEDPA and specifically on 2254(d)? The number of times they’ve been reversed unanimously, summarily, or both on this one issue indicates they are either intentionally evading or incompetent, and I think we can rule out the latter.
Comment by Kent Scheidegger — July 13, 2007 @ 11:38 am
It has always been my impression that the reasons to split the 9th Circuit did not involve changing the number of outlier decisions. I thought there were two better reasons:
(1) By making the 9th a circuit of, say, CA, NV, & Pacific islands, the left leaning judges would be concentrated there & their precedent would not affect the other states that chafe under the 9th (ID, AK, sometimes WA, etc.).
(2) Aim toward making all the circuits more or less equal in case load, thereby preventing one circuit from dominating the caselaw.
As to reversal rates, if it is any consolation, WA probably has a worse record before SCOTUS than the 9th — at least in recent years.
As for Mr. Ritter, I do think he exaggerates to the point of incredibility. The procedure at issue is poignantly described by the nurse observing it. It is both barbaric and, as Daniel Moynihan observed, just plain infanticide. It is precisley the sort of procedure that Justice Blackmun in Roe made clear could (and should) be prohibited. Roe may be at risk (I don’t think so), but Gonzales v Carhart does not law a finger on it.
Comment by John Schedler — July 13, 2007 @ 12:10 pm
Kent — Yes, I do find 9th Circuit’s right wing to be extreme. To me, qualified immunity and AEDPA are already extreme, to interpret them as requiring a “white horse” Supreme Court precedent is to completely eviscerate civil liberties. When a policeman makes a warrantless stop or search, he should already be thinking he is on shaky ground 4th amendmentwise; that’s pure textual originalism. Why is there any reason to defer to a state system that denies adequate counsel? As for the reversal rate of the Ninth Circuit, aside from the rightward shift of the Supreme Court, at least part of that comes from the Supreme Court’s making rules that it never has to apply in practice, while the 9th Circuit sees a full spectrum of cases and the impact of rules which it brings to its decisions.
Comment by Roger Friedman — July 13, 2007 @ 3:08 pm
“To me, qualified immunity and AEDPA are already extreme….”
That confirms my suspicion that you are not judging “extreme” as the distance from the objective benchmark of the American median, but rather from some idiosyncratic point, possibly the egocentric one of your own position.
Comment by Kent Scheidegger — July 13, 2007 @ 3:57 pm
Ouch, Kent. I hope you aren’t as harsh to me when we debate Medellin next Term.
Comment by Jacques McKenzie — July 13, 2007 @ 5:58 pm
Brian, I’m not sure what the point of reducing the 9th Circuit’s reversal rate would be? One could argue that a diversity of opinions percolating amongst the various lower-level courts is helpful in both a philosophical sense in raising to awareness new points of view on the law, and also in allowing the SCOTUS to see what that range of opinion is.
Beyond that, even if 9C were split such that it was issuing less “extreme” opinions, i’m not sure that would reduce the number appealed to the SCOTUS. I’m not sure extreme opinions are more prone to be appealed than “moderate” ones are.
Comment by steve jaros — July 16, 2007 @ 11:17 am
Steve, it’s not the number appealed that is the problem, it is the number that actually call for the Supreme Court’s intervention. Fewer extreme opinions would indeed reduce the number of summary reversals. I’m not convinced a split would do that, though, especially one that concentrates fringe judges in a smaller circuit. As it stands now, the center of gravity of the Ninth seems to be with the judges who are left of center but within reason, and we are slowly seeing more out-of-the-mainstream panel opinions corrected en banc.
Jacques, I don’t think my comment was harsh. I merely pointed out a misuse of the word “extreme” which has become disturbingly common: people tagging the “extreme” label on others who are no further from the median than the taggers themselves are on the other side, sometimes less so. See also the June 29 round-up post, linking to an article where Emily Bazelon calls Chief Justice Roberts “extreme.”
Comment by Kent Scheidegger — July 16, 2007 @ 3:40 pm
Kent, if the problem to be addressed by reducing reversals is that of the SCOTUS having to use some of its valuable time addressing appeals from the 9C, are summary reversals really a problem? Summary reversals would seemingly be relatively quick – they don’t require lots of time-consuming debate, discussion, preparation of long majority opinions and dissents, etc. no?
And even if so, i think that time-saving benefit should be weighed against the potential cost of reducing the ideological diversity of opinions amongst lower courts. Is the development of the law really well-served if all the federal courts are generating homogenized, split-the-difference opinions that don’t challenge anyone’s thinking?
Comment by steve jaros — July 17, 2007 @ 7:30 am