DOES THE SUPREME COURT HATE THE NINTH CIRCUIT?: A Dialogue On Why That Appeals Court Fares So Poorly

Akhil: If you insist. But since you brought up the clerkship thing, I can't resist noting that, with close to half of its cases from this Term now in, the Court once again seems to be slapping down the United States Court of Appeals for the Ninth Circuit - the court on which you clerked before working for Justice Blackmun, and the court seated a block away from your UC office in San Francisco.

Almost like clockwork, the Supreme Court seems to be reversing decisions of your circuit, often in what seems to be quite disrespectful ways. What's going on out there?

Vik: It's not exactly my personal circuit. It does after all embrace about 55 million other Americans (almost 20% of the nation's population) and over 1.3 million square miles (more than a third of the nation's land), covering all the Western states from Montana and Idaho to Arizona and Nevada as well as California, Oregon, Washington, Alaska and Hawaii.

Akhil: OK, so it's not yours alone. But you do admire many of its circuit judges.

Vik: Of course. On the other hand, it's a huge court that reaches lots of decisions I disagree with.

Akhil: You're not the only one. In this Term alone, the Supreme Court has already reversed the Ninth Circuit unanimously on five separate occasions. Even counting this week's 6-3 affirmance of the Ninth Circuit's decision involving child pornography and the First Amendment, the rulings of the Ninth Circuit have averaged less than 2 votes to affirm (out of a possible nine) per case.

Vik: Of course, the Supreme Court generally reverses more cases than it affirms, and several of this year's big cases from the circuit have yet to be decided. But I admit that this year's numbers look pretty bad so far--the circuit is not having a great year.

The Ninth Circuit's Recent, Dismal Track Record

Akhil: It hasn't had a decent year in a long while. By my informal tally from the past six or so Terms - I haven't had time to go back further - the Supreme Court has taken a disproportionately large number of cases from the Ninth Circuit (compared with its underlying population), and has reversed the circuit about 80-90 percent of the time, a much higher reversal rate than for other circuits.

In the 1996 Term, for example, the Ninth Circuit was reversed in at least 24 cases -- a staggering number -- and at least 16 of them were 9-0 reversals. When you're not picking up votes of anyone on the Court, something is screwy.

The Supreme Court's Limited Ability to Police Ideologically Diverse Lower Courts

Vik: Your numbers are hard to ignore. But consider a few of my own numbers that may provide a simple explanation. Right now there are 24 active judges on the Ninth Circuit, of whom 17 were appointed by Democratic Presidents, and only 7 by Republican Presidents. The Supreme Court, by contrast, has 7 Republican appointees and only 2 Democratic appointees.

As we have discussed in previous columns, the federal judicial appointments game is hardly apolitical. Is it surprising that Democrat-appointed judges may have different judicial philosophies than Republican-appointed Justices?

Akhil: Thanks for working in some points about the Constitution itself outside the Court, and reminding readers about the centrality of the appointments process. But here's another point about the Constitution itself: Article III's "inferior" court judges are generally bound by what the Supreme Court says and does. The Supreme Court can reverse its precedents, but lower courts must generally follow them, as Professor Evan Caminker has emphasized. If Ninth Circuit judges are getting reversed because they disagree with the High Court, they may not be acting as faithful lower court judges should.

Vik: My experience - and remember, I'm the one who has actually practiced law - is that many lower court judges, in many circuits, do not feel bound by Supreme Court precedent unless it is squarely on point. If there is any plausible way to distinguish higher authority with which a judge disagrees, he may try to go his own way and take the risk of getting reversed, knowing full well that the Supreme Court doesn't have the time or energy to police every lower court.

Akhil: That sounds a little like how some taxpayers play the audit lottery, taking self-serving positions on their returns while hoping not to get audited. And it is a nice reminder of yet another point about the Constitution itself: the Justices are limited in their ability to discipline willful lower court judges.

The Justices, after all, do not pick lower judges, or promote them, or determine their salary, and have little control over their individual workloads. In many European countries, there is much greater control within the judiciary itself as a kind of self-sustaining civil service bureaucracy.

But I digress. How do you explain why the Ninth Circuit often fails to pick up the votes of either of the Court's Democrat appointees, Justices Breyer and Ginsburg - or Souter and Stevens, who, though appointed by Republicans, often vote with Breyer and Ginsburg? Also, why does the Ninth Circuit get reversed more often and more lopsidedly than other Circuits where Democrat-appointed judges outnumber Republican?

Only the Second Circuit is like the Ninth - dominated by Democratic appointees, by a current margin of 10-3. (The Sixth Circuit, because a few judges very recently took senior status - a semi-retirement position - also has an imbalance now in favor of Democratic appointees, but since the imbalance is so new, it hasn't yet had any discernable effects.) The other Circuits are all rather balanced at present.

The Second Circuit Comparison: Democrat-Dominated Circuit, Lower Reversal Rate

Akhil: The Second Circuit proves my point that your simple explanation can't be complete. The Second Circuit is a coastal circuit headquartered in a big city (New York) and dominated by Democrat-appointees, and yet it is not slammed by the Supreme Court the way the Ninth is.

Vik: You'd like to think so, because you live and work in the Second Circuit. In fact, I think the Supremes are keeping a close eye on both our home courts. In this current Term, for instance, the Court has already decided three cases from your circuit, and has reversed in all three, and your circuit's rulings attracted only four total Justice-votes, barely more than one (out of a possible nine) per case.

Akhil: Yes, but its track record over the past five years has been much better than the Ninth Circuit's (although in a few Terms, like 1996 and 1999, the Second Circuit averaged fewer than 3 Justice-votes per case).

Last Term, for example, the Court reviewed eight cases from the Second Circuit, and affirmed in five of them. In those eight cases, the Second Circuit attracted 36 votes out of a possible 72, exactly half.

Is Size or Personality the Explanation?

Vik: The problem may stem from circuit size. Remember that the Ninth is the only Circuit that lacks a true en banc mechanism where the entire Circuit can undo the ruling of a rogue three-judge panel. Because the Ninth Circuit is so large, both numerically and geographically, when it takes a three-judge panel ruling en banc, the entire Circuit doesn't review the case (as in all the other circuits); rather, a randomly-selected group of 10 (plus the Chief Judge) hears the matter.

Because it is impossible to predict who will be drawn for an en banc panel, some judges in the Ninth Circuit might not vote to utilize en banc review to rein in outlying decisions by three-judge panels for fear that an unrepresentative en banc group might entrench the mistaken ruling even more. So maybe there are more rogue three-judge panel decisions out there just waiting to be stepped on by the Supreme Court.

Akhil: An interesting hypothesis worth some further thought. But I also suspect some of the Supreme Court's attitude toward the Ninth Circuit is personal.

On the Ninth Circuit side, you've got some pretty colorful judicial characters like Alex Kozinski and Steve Reinhardt (who alone was reversed by the Supreme Court unanimously an unbelievable five times in a single Term).

And on the Supreme Court side, you've got almost half the Justices who have deep personal ties to the Circuit. Before coming to the Court, Justice Kennedy spent virtually his entire life living in the Ninth Circuit--that is the Circuit in which he practiced law and on which he sat. Thus he is quite familiar with many of the circuit's most colorful personalities. (Judge Kozinski was himself one of then-Judge Kennedy's first clerks in the Ninth Circuit.) Chief Justice Rehnquist and Justice O'Connor both studied law in California and practiced law in Arizona. Each has also acted as the Court's special liaison to the Ninth Circuit. (Rehnquist held the position of "Circuit Justice for the Ninth Circuit" for his first decade on the Court, and O'Connor has held it for the fifteen years since then.) And Justice Stephen Breyer was born and raised in San Francisco, where his brother, Charles Breyer, is a district court judge within the circuit.

No other circuit (except perhaps the D.C. circuit, which is a special case) has that kind of deep professional and emotional history with so much of the Court. So even if there weren't compelling legal and cultural reasons for the Court to keep tabs on the left Coast (which there are, since so many national trends are born there), there would be very personal reasons to monitor the circuit carefully.

Vik: The point about the Breyer brothers is especially interesting. I rather like the idea of the brother (Stephen) who once clerked for the Supreme Court now sitting on the Court, with the last word over the other brother.

Akhil: There you go again.