ANOTHER Supreme Court term has come to a close, and, while many things changed in the law, one thing stayed the same: The justices spent much of their time reversing the U.S. 9th Circuit Court of Appeals.
The 9th Circuit, which hears appeals in federal cases in the Western United States, is the largest of the 13 such courts, with 28 active judges and more than 20 part-time senior judges. The 9th Circuit is almost three times the size of an average court of appeals, and its jurisdiction stretches from Alaska to Arizona, an area comprising nearly one-fifth of the American population.
The 9th Circuit also has a long-running streak as the most overturned, which went unbroken this year. The Supreme Court reviewed 22 cases from the 9th Circuit last term, and it reversed or vacated 19 times. By comparison, the Supreme Court reviewed only five cases, vacating or reversing four, from the next-busiest court of appeals, the 5th Circuit based in New Orleans.
In other words, although the 9th Circuit decided only one-third more appeals on the merits than the 5th Circuit, it was reversed nearly five times more often.
These numbers suggest that the 9th Circuit is not doing a very good job. I am not the first to point this out. For many years, lawyers, judges and legal scholars have argued that the 9th Circuit is so large and unwieldy that it should be split. Indeed, before the 2006 midterm elections, Congress came very close to doing just that. Legislation passed the House but was never acted on in the Senate.
Proponents of splitting the 9th Circuit largely have been unable, however, to connect the colossal court's size to its high rate of reversal. But there is a connection. Indeed, it can be shown mathematically that, as a court grows larger, it is increasingly likely to issue extreme decisions.
We know that all judges are not created equal. Some are more ideologically extreme, more willing to push the law in a liberal or conservative direction, to find ways around precedents they do not like. Such extreme jurists are a minority on any federal court of appeals, but these courts don't typically decide cases by a majority vote of their entire memberships. Rather, cases are heard by panels of three judges selected at random. So, despite their small overall numbers, extreme judges will occasionally make up a 2-1 majority.
So what are the chances that a circuit court will draw a panel with two judges who hold extreme views? It depends first on how many such judges you have, but also on how big the court is.
