Perception Isn’t Reality: The Ninth Circuit’s Relationship With The U.S. Supreme Court By Sean SeLegue

by International Lawyers Network
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Article contributed by International Lawyers Network Member: Howard Rice Nemerovski Canady Falk & Rabkin PC.

The Ninth Circuit has long been known as having a “special” relationship with the Supreme Court, although it’s not necessarily the kind of “special” relationship one would long for. It’s often reported that Ninth Circuit decisions are reversed by the high court with extraordinary frequency. While the Ninth Circuit’s reversal rate is indisputably on the high side, many are surprised to learn that the Ninth Circuit’s reversal rate may not be as out of the ordinary as it is often presented. In the last two complete Supreme Court terms, several other circuits have had similarly high reversal rates.

REVERSAL RATES COMPARED

Let’s start with the common wisdom that the Supreme Court reverses the Ninth Circuit more often than not. True enough. Statistics from the last two completed Supreme Court terms confirm that Ninth Circuit decisions taken up by the Supreme Court do, in fact, tend to be reversed much more often than they are affirmed. In October Term 2008, of the sixteen Ninth Circuit decisions reviewed by the Supreme Court, the Court issued an unqualified affirmance in only one case. In the following year, October Term 2009, the Supreme Court heard fifteen cases and issued unqualified affirmances in four — a 27 percent affirmance rate. And it is true that these mean that the Ninth Circuit is among those circuits with the highest reversal rate.

But the Ninth Circuit is not alone in having high reversal rates. In October Term 2008, three circuits (the Fourth, Sixth, and Eighth) had 100 percent (or close to 100 percent) reversal rates. It’s intriguing to see the Fourth Circuit in this group, because it is commonly thought of as a conservative court. By contrast, the Ninth Circuit has a reputation for being a more liberal court that often finds itself in conflict with the Supreme Court. High reversal rates for several of the circuits were not unique to the 2008 term. In October Term 2009, four circuits had very high reversal rates comparable to the Ninth Circuit’s rate: the Fifth, Sixth, Eighth, and D.C. Circuits. It should be noted that the Sixth and Eighth Circuits made the list for two years in a row.

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