High court likely to add to 9th Cir­cuit re­ver­sal rate

West Coast judges seen as out of touch

The Washington Times Weekly - - Politics - BY ALEX SWOYER

The fed­eral ap­peals court that cov­ers the coun­try’s West Coast is do­ing lit­tle to shake its rep­u­ta­tion as the most outof-touch cir­cuit, al­ready hav­ing notched seven cases that have been re­versed by the 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.

That honor goes to the U.S. Court of Ap­peals for the 6th Cir­cuit, based in Ohio. Nearly 90 per­cent of its cases that reached the Supreme Court have been over­turned in the past decade.

The 11th Cir­cuit, based in At­lanta, is next-worst with a 78 per­cent re­ver­sal rate, fol­lowed by the 9th Cir­cuit.

“The Supreme Court gen­er­ally takes cases to re­verse, and so you’ll no­tice that ev­ery cir­cuit, by and large, has a re­ver­sal rate and some of the re­ver­sal rates are very high,” said David Vladeck, a law pro­fes­sor at Ge­orge­town Univer­sity.

In con­trast, only 50 per­cent of rul­ings by the U.S. Court of Ap­peals for the 1st Cir­cuit have been re­versed in a 10-year pe­riod.

“It’s the small­est cir­cuit in terms of work­load. They don’t get a lot of the tough sort of so­cial is­sues,” said Mr. Vladeck.

A Supreme Court re­ver­sal car­ries no real penalty other than a mea­sure of dis­ap­point­ment or em­bar­rass­ment, but le­gal schol­ars still track the num­bers closely — and they have bled into pol­i­tick­ing.

Mr. Trump and his al­lies last year pointed to the 9th Cir­cuit’s fre­quent re­ver­sals af­ter the judges on that court ruled against his travel ban pol­icy. Af­ter sev­eral re­vi­sions, the lat­est ver­sion of the pol­icy was still shot down by the 9th Cir­cuit.

But the Supreme Court seemed to take a more open view of the ban dur­ing oral ar­gu­ment in April. A rul­ing is due by the end of June, but many le­gal an­a­lysts ex­pect the 9th Cir­cuit to add to its re­ver­sal to­tal.

Lee Ko­varsky, a law pro­fes­sor at the Univer­sity of Mary­land, said get­ting re­versed by this Supreme Court doesn’t sig­nal a prob­lem for the 9th Cir­cuit.

“The fact that they get over­turned a lot by a more con­ser­va­tive Supreme Court doesn’t re­ally qual­ify,” he said.

The 9th Cir­cuit also sends the Supreme Court more work than any other cir­cuit. Over the past decade, it ac­counted for 155 cases, nearly three times more than the next-high­est caseload.

The court is huge. It cov­ers nine Western states, in­clud­ing Cal­i­for­nia, and sev­eral of the is­land ter­ri­to­ries, and has dou­ble the pop­u­la­tion of the next-largest cir­cuit. It also re­ceives more than 10,000 ap­peals a year — far more than smaller cir­cuits.

Mem­bers of Con­gress, par­tic­u­larly those from other states in the cir­cuit that feel swamped by Cal­i­for­nia, have long pressed to break up the cir­cuit. The Se­nate pe­ri­od­i­cally holds hear­ings on the mat­ter, in­clud­ing a hear­ing last sum­mer.

“The sheer size of the 9th Cir­cuit surely makes it a rea­son­able can­di­date for a split,” said Evan Young, a law pro­fes­sor at the Univer­sity of Texas.

Mr. Evans said the last time Con­gress di­vided a cir­cuit was in 1981, when it carved the 11th Cir­cuit out of the 5th Cir­cuit. At the time, he said, the 5th Cir­cuit had less of a per­cent­age of the na­tion’s pop­u­la­tion than the 9th Cir­cuit has to­day.

Crit­ics, though, claim it’s nearly im­pos­si­ble to fairly di­vide the 9th Cir­cuit be­cause of Cal­i­for­nia’s dom­i­nance, which ac­counts for roughly 60 per­cent of the res­i­dents liv­ing in the 9th Cir­cuit’s ju­ris­dic­tion.

That means out of 29 judge­ships on the cir­cuit court, 15 of them are deemed to be held for Cal­i­for­ni­ans.

Sen. Jeff Flake, Ari­zona Re­pub­li­can, com­plained dur­ing a Se­nate Ju­di­ciary Com­mit­tee hear­ing last month about the power those Cal­i­for­nia judges have over his state, which has a de­cid­edly dif­fer­ent po­lit­i­cal and ide­o­log­i­cal tem­per­a­ment from Cal­i­for­nia’s.

“A state with ad­mit­tedly lit­tle in com­mon with states like Ari­zona or Oregon or the six other re­main­ing states in the cir­cuit can de­cide the ma­jor­ity of ap­pel­late judges for the western half of the county,” Mr. Flake said.

Brian Fitz­patrick, a law pro­fes­sor at Van­der­bilt Univer­sity, said he also thinks the 9th Cir­cuit should be split into smaller units.

“You can show math­e­mat­i­cally that — every­thing else held equal — big­ger cir­cuits are more prone to ran­domly se­lect ex­treme three judge pan­els,” he said.

One op­tion schol­ars have ex­plored is keep­ing Cal­i­for­nia and Hawaii in the 9th Cir­cuit and re­mov­ing the other seven states. They could be made into a sep­a­rate cir­cuit or added to other cir­cuits.

Mr. Vladeck, though, thinks the 9th Cir­cuit is fine the way it is, and he said the heavy caseload the cir­cuit sends to the Supreme Court is a re­flec­tion of the is­sues it is de­cid­ing.

“The [Supreme] Court is be­ing very spe­cific about what cases it takes,” he said. “It’s look­ing for cases it thinks are more im­por­tant … in terms of ef­fect­ing a large num­ber of cases [in­volv­ing] is­sues of so­cial and po­lit­i­cal im­por­tance.”

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