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Disorder in the court

The 9th Circuit is overturned more than any other appeals court. Its size may be a factor.

July 11, 2007|Brian T. Fitzpatrick | BRIAN T. FITZPATRICK, a professor at Vanderbilt Law School, was a clerk on the 9th Circuit and the U.S. Supreme Court.

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.

Consider a hypothetical court of 28 judges (the number of active judges currently on the 9th Circuit), in which six of the judges are extreme. The probability of such a court randomly selecting a panel with at least two extreme judges is almost 11%. But if it were divided into two courts -- each with 14 judges, three of whom are extreme -- that probability falls to 9%.

A difference of 1% or 2% may not seem like much, but the 9th Circuit decides more than 6,000 cases every year. This means that if the 9th Circuit is anything like my hypothetical court, splitting it in half would save 60 to 120 appeals a year from being decided by panels with a majority of extreme judges.

If a majority of the full court believes a panel's decision is too far out of step, the full membership can rehear a case. But that is such a cumbersome process that it's used very rarely. The 9th Circuit used it only 22 times last year. And even then, the court is so large that it uses a randomly selected panel of 15 judges instead of the full 28.

Of course, mathematics cannot prove that one of the reasons the 9th Circuit is so frequently reversed by the Supreme Court is because it renders more extreme decisions. But we have other evidence to go on. Of the 19 9th Circuit cases reversed by the Supreme Court last term, eight of them were unanimous -- that is, the 9th Circuit's view in these cases did not win the support of a single justice, from the liberal John Paul Stevens to the conservative Clarence Thomas. All the other 12 circuit courts combined were unanimously reversed only nine times.

In other words, it is no coincidence that, when you hear about a bizarre ruling issued by a federal court of appeals, it very likely came from the 9th Circuit. That court was, after all, the one that held a few years ago that it was unconstitutional to voluntarily recite the Pledge of Allegiance in a public school. It also has ruled that tenants in public housing could not be evicted even though their apartments were being used as drug dens. Both of these decisions were, not surprisingly, unanimously reversed by the Supreme Court.

As long as the 9th Circuit stays as large as it is, it is likely to disproportionately continue to issue rulings like these, and it is likely to continue being disproportionately reversed by the Supreme Court.

Over the last six years, many members of the Senate have expressed their desire to reduce the number of "extreme" (as opposed to "mainstream") judicial decisions. If they mean what they say, they should also want to complete the work of the last Congress and split the 9th Circuit.

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