Fact Check: The Nefarious 9th Circuit
He recently decried the federal appellate court, which covers nine Western states and two territories, as “a complete [and] total disaster.” He went on to bemoan that the court “has a horrible reputation, [and] is overturned more than any Circuit in the [c]ountry.”
The president’s grumbles will likely fall on receptive ears. For decades, the Ninth Circuit has been viewed by the right as a liberal bastion, where judges are openly hostile to Republican presidents and conservative politics. In support of this view, critics of the Ninth Circuit will often point to the disproportionate number of judges appointed by Democratic presidents, and the number of times the court’s decisions have been overruled by the Supreme Court.
Yet for all its purported faults, the Ninth Circuit’s ideological makeup and reversal rate is on par with many of its sister circuits around the country.
It’s true that 16 of the 23 Ninth Circuit judges were nominated by either President Clinton or Obama. But that ratio is not unusual for circuit courts. In the D.C. Circuit, for example, seven of the 10 active judges were Democratic nominees. The ratio is flipped in the Chicago-based Seventh Circuit, where nine of the 11 judges were nominated by Republican presidents. And in the Eighth Circuit, based in St. Louis, the percentage is even more extreme: Of the 11 active judges, only one was tapped by a Democratic president.
Another popular talking point—one used by the President—is that 79 percent of Ninth Circuit decisions considered by the Supreme Court are reversed. The 79-percent claim is correct regarding decisions made between 2010 and 2015. But critics are using statistical sleight of hand. Yes, the Ninth Circuit is often reversed by the Supreme Court, but so are most other circuit courts, and some by even worse percentages.
Last term, for example, the Supreme Court reversed 74 percent of decisions made by lower federal courts it considered last year. Three Circuits—the First, Third and Sixth—saw 100 percent reversal rates. The Ninth Circuit saw an 86 percent reversal rate, with the Eleventh Circuit and D.C. Circuit close behind at 83 percent and 80 percent, respectively.
Why such high rates? Each year, the Court receives roughly 7,000 to 8,000 petitions for certiorari, but only about 80 are granted and set for argument. Because of this low percentage, the Court will only consider cases which have national importance or will resolve conflicting lower court decisions. With this in mind, it’s easy to imagine why circuit courts are often reversed. After all, with such few cases heard, there is little reason for the Supreme Court to invest time in cases it thinks are decided correctly.
But the reversal rate only tells half the story. Although 100 percent of cases from the First, Third and Sixth Circuits were reversed, those were only eight of the cases heard last term. To compare, last term the Court heard 15 cases from the Ninth Circuit. This is primarily due not to the circuit’s alleged liberal bias, but its disproportionate size. As summarized by Judge Diarmuid O’Scannlain, the Ninth Circuit “employ[s] more than twice the average number of judges, … handle[s] more than three times the average number of appeals, and … contain[s] nearly three times the average population.” It is therefore inevitable that the Supreme Court will likely accept, and overrule, more cases from the Ninth Circuit than from any other court.
Since the Carter administration, the Ninth Circuit has gained notoriety for a number of “high-profile, left-wing decisions.” Even so, the president’s recent criticisms of the Ninth Circuit are, at best, misleading.