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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.)