Friday, August 23, 2002

Just a few more words on the Ninth Circuit and its reversal rate.

Those who think that the Ninth Circuit is out of control tend to focus on the cases in which that Court is reversed by a unanimous Supreme Court. Some focus even more narrowly on unanimous reversals of opinions written by Judge Reinhardt, as though this proves that he is a radical. Though this takes me perilously close to opining about the psychology of the Supreme Court justices -- which is perilous, first, because it's always dangerous to opine about the psychology of people you've never met, and second, because these are people whom (on the very unlikely chance they'll ever be aware of anything I write here) I don't want to piss off. But here goes.

The first point to realize about unanimous reversals by the Supreme Court is that they're not so rare at all, as to the Ninth Circuit or any other Circuit. Someday I will write a long article, offering a taxonomy of the types of cases that tend to result in unanimous reversals by the Supreme Court. For now, it's enough to point out that all of the Circuits are reversed unanimously often enough that someone intent on embarrassing any given Circuit could make a big deal out of it. This is true not only of unanimous reversals after full briefing and argument (see, e.g., this 2001 Term opinion [pdf file, like all the links to follow] unanimously reversing the Second Circuit and this one as to the Fourth), but also of decisions that seem so obviously wrong to the Supreme Court that they don't even require oral argument. (See, e.g., this 2001 Term opinion unanimously reversing the Fifth, this 2001 Term opinion unanimously reversing the Sixth, and this 2001 Term opinion unanimously reversing the Third). So, don't let anybody tell you that the Ninth Circuit is crazy as "proven" by the fact that they sometimes get unanimously reversed.

Second -- and here goes the psychology -- it is quite possible that the Ninth Circuit gets reversed more because the Supreme Court has subconsciously been swayed by the common rhetoric about that Circuit. On this view, the Ninth Circuit would be reversed more, not because it is wrong more, but because the Supreme Court is keeping a closer eye on it. And it is, in the same vein, quite possible that, in general, the Supreme Court is somewhat more likely to take and unanimously reverse a clearly-wrong opinion that is "liberal" than a clearly-wrong opinion that is "conservative". After all, the Supreme Court has almost complete discretion in what cases it takes, and the Court is regularly presented with cert petitions from decisions that are pretty clearly wrong. This is not to criticize the Courts of Appeals too much; everybody gets things wrong sometimes, if they're human, and the Judges on the Courts of Appeals are human. The Supreme Court can't take every case just because the decision below is wrong; there's not time for that. So the Supreme Court picks and chooses which cases to take, even among the ones where the lower court was pretty clearly wrong. It generally won't take a case even where the lower court is wrong, unless there's some good reason beyond the wrongness. And it would not be psychologically surprising if, when exercising that discretion in picking and choosing, the Justices (and their Clerks) were more likely to pay attention to "liberal" decisions of the Ninth Circuit. This wouldn't mean that that Court is wrong more often than others, just that its mistakes get "cert granted" more often.

Take, for instance, the Rucker case about people getting kicked out of public housing when their relatives are drug dealers; even if the Ninth Circuit got that case wrong (as the Court unanimously said it did), the Court's opinion doesn't mention any Circuit-split or any of the other usual reasons for granting cert. Yet the Court decided to take that case, and to let lots of other cases, that were equally-wrongly-decided below, slide. This pattern seemed pretty clear-cut to me in the 2000 Term, when the Supreme Court decided to unanimously and summarily reverse the Ninth Circuit in two cases in quick succession here [updated note to self: not quite unanimously, but almost, and summarily] and here; though those Ninth Circuit decisions may have been wrong, they were run-of-the-mill wrong, with no real interesting legal issues or any other facet to differentiate them from the routine wrong decisions that lower courts (again, because they are human institutions) issue with some frequency.

It's sort of like blogging: if Mickey Kaus gets on a roll of pointing out factual errors in the NYT -- even if he's right (which he's not always, but pretend that he is) -- that doesn't mean that the NYT makes more mistakes than other papers. It just means that, for whatever psychological reasons, he's paying more attention to finding mistakes in the NYT.

Am I saying that the Supreme Court is doing something nefarious as to the Ninth Circuit? No. All I'm saying is that I've never yet seen a human institution where subconscious patterns of thinking didn't affect decisions and outcomes; and so it wouldn't surprise me if that's true of the Supreme Court too, and it wouldn't surprise me if among their subconscious patterns is a tendency to notice and to point out the Ninth Circuit's errors more often and more vigorously than they notice and point out other Courts'.

UPDATE: Oops, I guess that was more than "a few more words". And I've noticed that Howard was not only briefer, but funnier.

posted by sam 1:46 PM 0 comments

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