A Decade of Reversal: The Ninth Circuit's Record in the Supreme Court through October Term 2010

Thank you for inviting me to speak with you today. Reflecting on the beginning of another Supreme Court term next month, I thought I would take the opportunity to reflect on how cases from my own court have fared over the past decade. I would like to start with a review of my court's performance before the Supreme Court from October term 2000 through October term 2009. I will then say a few words about the October term 2010. I The Ninth Circuit's record, I am afraid to say, has been strikingly poor. From the 2000 term to the 2009 term, the Supreme Court rendered full opinions on the merits in 182 cases from the Ninth Circuit. (1) In 148 of those cases, the Supreme Court reversed or vacated our decision. (2) In other words, our court got it wrong in eighty-one percent of its cases that the Supreme Court agreed to hear. That's a .190 batting average. (3) By contrast, in the past decade, the other twelve circuits had a combined reversal rate of only seventy-one percent--ten percent lower than that of the Ninth Circuit. (4) Consider, as well, that over the same period, the Supreme Court's reversal rate of state-court decisions was only about seventy-six percent. (5) So, even the state courts, as a whole, appear to be better at interpreting federal law than the Ninth Circuit. (6) Even more telling than the reversal rate itself, however, is the number of unanimous reversals. Seventy-two of the 148 Ninth Circuit cases reversed during the last decade were at the hands of a unanimous Supreme Court. (7) Put differently, in about one-half of all the cases in which our court was reversed, not a single justice agreed with the Ninth Circuit's decision. To quote Akhil Amar of Yale Law School: "When you're not picking up votes of anyone on the [Supreme] Court, something is screwy." (8) To add insult to injury, our court was summarily reversed fifteen times--that is, reversed by a short, unanimous opinion, without the benefit of briefs on the merits or oral argument. (9) Summary reversals are, in the words of Chief Justice Roberts, "bitter medicine," because they are reserved for cases in which the lower court's error is so "apparent" that neither briefing nor argument is necessary. (10) Unfortunately, approximately one in ten Ninth Circuit cases reviewed by the Supreme Court results in a summary reversal. (11) While about half of the cases reversing the Ninth Circuit were decided by a unanimous court, a mere fourteen percent were decided by a five-to-four vote along traditional "conservative-liberal" lines. (12) Thus, though it is true that there have been five so-called "conservatives" on the court over the past decade, the fact remains that in the vast majority of cases, it is not just the conservatives who are voting against the Ninth Circuit. In the 2002 term, for example, the Supreme Court reversed the Ninth Circuit eighteen times. Justice Breyer voted to reverse the Ninth Circuit eleven of those times. (13) Given the number of unanimous reversals, as well as the general frequency with which even so-called "liberal" justices vote to reverse, it is safe to say that reversing the Ninth Circuit is much more than just a matter of ideology. It is also worth noting that Justice Sonia Sotomayor's arrival at the court in 2009 has not improved the Ninth Circuit's success rate. In the 2009 term, the Supreme Court rendered full opinions on the merits in fifteen cases from the Ninth Circuit. (14) Eleven of the fifteen were reversals, and five of the reversals were unanimous. (15) Beyond reversal rates, another metric of a circuit's performance is the amount of times the Supreme Court grants certiorari in its cases. After all, because the Supreme Court often grants cert because it senses a problem, a circuit that is doing well, arguably, receives relatively few writs of certiorari. Sadly, the Ninth Circuit does poorly in this area as well. In the past decade, about thirty percent of the Supreme Court's writs of certiorari to federal courts of appeals were issued to the Ninth Circuit. …