We’re at the beginning of a flurry of Supreme Court decisions, many of which are being eagerly watched and are sure to set tongues wagging when the results are handed down. The “bake the cake” case was only the first of the highly controversial ones. But as we watch them roll out this month there’s one other set of statistics which court observers might be keeping an eye on. Of the various circuit courts which regularly send cases up to the Supremes, how many of them have their own rulings upheld and how many of them are reversed? Perhaps more to the point, which court is the most “out of step” with the rest of the country and is most often smacked down in the final ruling?
You probably have one court in mind already, but you might be surprised who leads the pack. The Washington Times compiled some of the numbers this week.
The federal appeals court that covers the country’s West Coast is doing little to shake its reputation as the most out-of-touch circuit, already having notched seven cases that have been reversed by the U.S. Supreme Court so far this year and 115 over the past decade.
As the justices prepare to release final rulings in 29 cases, the U.S. Court of Appeals for the 9th Circuit again will be in the spotlight with some of its major cases, such as President Trump’s travel ban, up for review — and potential reversal — by the high court.
But as bad as the 9th Circuit’s record is, it’s losing percentage — 78 percent so far this year and 76 percent for the past decade — still isn’t the worst.
I’m guessing that more than a few of you made the same guess I did and assumed that the ninth circuit was simply the worst. Well, if they keep going on their current pace they might get there. Seven reversals this year alone, more than 100 since 2007 and a 76% reversal rate over that period is pretty bad. But it turns out that the sixth circuit, based in Ohio takes top honors in the hall of shame. Since 2008 they’ve had nearly 90 percent of their decisions reversed on appeal. In Atlanta, Georgia, the 11th Circuit also beats out the ninth with 78% of their decisions being reversed. The humble ninth circuit sneaks in at third place on the list.
Of course, it’s also not entirely fair to judge each circuit solely on the raw number of decisions which are overturned. Some circuits are larger and busier than others, with a tendency to have jurisdiction over places where more controversial laws are put on the books. In that regard, since the ninth covers California and the rest of the left coast it could be described as at least somewhat surprising that they even managed to have 24% of their decisions upheld over the past decade.
(In case you were wondering, the court with the best record is the 1st Circuit based out of Boston. Roughly half of their decisions are upheld.)
So does this mean that one court is “worse” than the other? I suppose that depends on your definitions. One factor, as pointed out in the linked report, is that the Supremes more frequently agree to hear cases where it seems likely that they will at least consider reversing a lower court. The ones which seem like settled law will generally be rejected. In fact, very few of the cases which are sent to the Supremes for consideration are actually heard. The social justice cases tend to be the most controversial and the least rooted in well-established constitutional law. So it makes sense that San Francisco would generate a lot more of them than Boston.
But still, the judges in all these circuit courts are surely aware of all the same precedents that the Supreme Court will likely consider, right? So how do the ones on the west coast keep getting it so consistently wrong? There’s no real answer to that question or any remedy except to start appointing better judges I suppose.