IN DEFENSE OF THE NINTH CIRCUIT COURT OF APPEALS:
Though The Ninth Circuit Is Frequently Reversed By The Supreme Court That Does Not Mean It Is Frequently "Wrong"

Recently, and notoriously, the United States Court of Appeals for the Ninth Circuit declared unconstitutional that portion of the Pledge of Allegiance declaring the United States to be one nation "under God." As a result, every politician under the sun took turns bashing the Ninth Circuit as a court out of control.

Nor was the criticism limited to grandstanding politicians. The New York Times published a front-page story quoting scholars and judges criticizing the Circuit and suggesting that it had become "irresponsible."

But does the Supreme Court's frequent disagreement with the Ninth Circuit truly show substandard performance by the Circuit? Or, put another way, do these reversals necessarily mean that the Supreme Court is "right" and the lower court "wrong?" Indeed, should the fact of reversal in and of itself carry any negative connotation at all? I don't think so.

The Ninth Circuit's Record of Frequent Reversal Is Undisputed - But What Does It Mean?

There is no question that the Ninth Circuit in some years has had a truly atrocious record at the Supreme Court. In 1996, for example, it suffered a remarkable 24 reversals, including 16 by a unanimous 9-0 vote.

The Circuit fared somewhat better this past term, when the Court affirmed the Circuit 4 times and reversed 14 times - a reversal rate roughly in line with those of other courts of appeals. Still, 6 of the 14 reversals were unanimous. That is an unusually high number, and a strong indicator that the Ninth Circuit remains significantly out of step with the court that reviews its work.

Based on these statistics, critics of the Circuit have diagnosed a variety of ills. Most, like Judge Richard Posner of the Seventh Circuit (who has done the most thorough statistical analysis of the Ninth Circuit's record), conclude that the Ninth Circuit, the largest by far with 28 active judges, is simply too big to do its job well.

But is the symptom - the high reversal rate - based on which the diagnoses are made even an indicator that the court is ailing? Not necessarily.

Is the Best Kind of Appellate Judging Simply Predictive of the Supremes?

What one takes Supreme Court reversals to mean depends on one's theory of appellate judging. Suppose you believe the best approach for an appellate judge to take, is to decide cases based on how he or she predicts the Supreme Court would decide them. Then it makes perfect sense to grade an appellate court based on its Supreme Court reversal rate. Under this approach, by definition, a Supreme Court reversal would indicate that the appellate court had failed in its predictive mission.

Some courts, on occasion, have adopted this predictive model of decision. The Third Circuit, for example, did so in deciding the important case of Planned Parenthood v. Casey, which involved a strict Pennsylvania abortion regulation. (Many predicted the Supreme Court might use Casey as a vehicle to overturn Roe v. Wade. In fact, in a landmark decision, the Court instead reaffirmed the core of Roe in Casey.)

Specifically, the Third Circuit thought, it was likely to apply Justice Sandra Day O'Connor's "undue burden" test. So the Third Circuit, anticipating the Supreme Court, applied the "undue burden" standard and upheld the regulations.

The Third Circuit's approach was controversial at the time. The court was right that at the Supreme Court, Justice O'Connor's "undue burden" standard would hold sway. But at the time, that was just a prediction. Despite many opportunities, the Supreme Court itself had never jettisoned the strict scrutiny standard established in Roe. Now the Third Circuit was arrogating the power to itself to do what the Court had never done.

In this sense, the Third Circuit's predictive approach flouted standing precedent - albeit a precedent of uncertain vitality.

Another Approach: Exercising Independent Judgment on Truly Open Issues

Most appellate judges, I suspect, do not think of themselves as engaged in the crystal gazing business of Supreme Court prediction. Instead, they view their job as reading the Supreme Court's precedents and applying them fairly. Where those precedents decide the case at hand, so be it: they follow the Court.

But suppose the Supreme Court's precedents leave an issue open - that is, suppose those precedents, given a natural reading, do not resolve the issues in a case? In that event, I believe most appellate judges consider it their duty to render decisions based on their own independent judgment - and to do so regardless of how they think the Supreme Court might ultimately resolve the very same issues.

Put simply, if they do not consider themselves bound by the Court, they consider themselves free of the Court and bound only by the law - and thus they do not, when they decide, employ a crystal ball to guide them in divining what the Court may do. Instead, they form independent judgments based on a variety of legitimate tools of interpretation, including statutory or constitutional text, history, analogous cases from sister courts, even, in some cases, public morays.

Is Judicial "Free-Thinking" Such A Bad Thing, When the Alternative Is Blind Obedience to Predictions?

This "free-thinking" approach has a number of virtues - and I think these virtues render it better than the predictive approach. For one thing, it reflects a nice balance. One the one hand, it respects an appellate judge's duty to follow and apply the rulings of a "superior" court - the Supreme Court. On the other hand, it also respects that judge's independent duty to uphold the laws and Constitution of the United States.

Because this approach directs all judges merely to divine the view of the Supreme Court, if judges are good predictors then all their opinions ought to be exactly alike - and neither the public nor the Supreme Court, if it grants review, will ever read a contrary decision. But forcing dozens of smart judges to all produce identical, and identically predictive opinions, is no way for the law to progress.

Under the "free-thinking" model, the mere fact that the Supreme Court disagrees with an appellate court decision says little or nothing about the quality of the decision being disapproved. The disagreement might well reflect nothing more than a good faith disagreement over the right resolution of a novel legal issue. Without looking at the competing Supreme Court and appellate court opinions, there is no way of discerning which court did the better job of judging - that is, which one more persuasively employed the tools of judicial reasoning.

Rather, to properly evaluate the quality of an appellate court opinion, one needs to know whether the appellate court either gave short shrift to Supreme Court precedent or, if precedent was not the problem, whether the appellate court's free-thinking was flawed or unpersuasive.

The Better Approach to Appellate Judging Shows the Ninth Circuit In a Better Light

What, then, should we think of the Ninth Circuit's reversal rate, if we adhere to the "free-thinking" model? Certainly, we will be far less quick to disparage the Circuit based on statistics alone, and we will want to know, instead, the specific facts and law of each reversed decision before judging the Circuit harshly.

Of course, such analysis takes time - and does not lend itself to "sound bites" - but it is the better, fairer approach. The alternative is to let numbers alone tell a potentially false story, and one that may unfairly undermines public confidence in the courts.

That does not mean the Circuit is beyond reproach, of course - just that reproach should be saved for particular case, not a sort of Circuit batting average. To be sure, Ninth Circuit opinions have been known to mangle Supreme Court precedents. In death penalty cases in particular, the Ninth Circuit has even been known to be outright defiant. Sometimes, too, the Circuit's independent reasoning has fallen short of the mark.

Still, the statistics adduced to condemn the Ninth Circuit do not show to my satisfaction that the Ninth Circuit, when evaluated on these bases, has a meaningfully worse record than other Circuits. No small part of the Ninth Circuit's outsized reversal rate is simply a matter of politics.

This Circuit, unlike so many others, has a decidedly more liberal bent than the current Supreme Court. That means, in turn, that when the Circuit engages in legitimate free-thinking, that thinking is very often going to be at odds with the views of a majority at the Supreme Court.

In short, unless one believes that the views of Supreme Court justices are inherently better than the views of appellate judges (and I sure don't), this political/jurisprudential disagreement does not make the Ninth Circuit "bad" - only refreshingly different.

Criticizing the Pledge Case - Or Praising It?

And that brings me back to the Pledge case. It is certainly true that the decision measures up badly if one subscribes to the predictive model. As a predictive matter, it seems highly likely that the current Supreme Court would have reached - and may yet reach - a different result, one that would allow teachers to lead schoolchildren in a Pledge that includes the phrase "under God."

The exact vote one should predict, though, is not so clear, and might be as close as 5-4. And 5-4 decisions are yet another strike against the predictive model. When the case is close, predictions are more likely to be wrong, and in that event the predictive model not only denies judge's the ability to independently and conscientiously exercise his or her judgment, but turns out to be arrogant and futile besides.

But suppose one subscribes to the precedent/free-thinking model, and not the predictive model? It turns out that the Pledge case stands up pretty well.

A strong argument can be made that the Ninth Circuit faithfully applied current Supreme Court precedent, most significantly the 1992 decision in Lee v. Weisman. There, the Court declared unconstitutional a voluntary ecumenical prayer at a high school graduation. And Justice Scalia, dissenting, argued specifically that the majority opinion rendered the Pledge of Allegiance unconstitutional.

The Ninth Circuit, after a reasonably thorough parsing of Lee, simply agreed with Scalia. It was within the law to do so. After all, if a voluntary ecumenical graduation prayer violates the Establishment Clause, why doesn't a less voluntary, teacher-led "under God" homeroom Pledge do the same? At worst, this is a question over which reasonable minds may disagree without disparagement.

All of which is simply to say that critics of the Ninth Circuit have more work to do to make their case. Moreover, the Pledge decision that sparked this latest round of opprobrium will be of little help in that effort.

The Ninth Circuit's jurists are not baseball players who hit or do not hit the ball; they are judges who read, interpret, and agonize over the law. That is how they should be viewed and evaluated.