by Michael Stephan
The Lewis & Clark Law Review recently published an essay by Judge Diarmuid F. O’Scannlain of the Ninth Circuit. The essay discusses the reversal rate of Ninth Circuit cases at the Supreme Court over the past decade. Judge O’Scannlain, who is considered strongly conservative by some, concludes that “the Ninth Circuit’s record in the Supreme Court has been strikingly poor.”
Judge O’Scannlain points out that, in the last ten years, the Ninth Circuit was reversed or vacated in 81% of its cases that the Supreme Court heard. The other twelve circuits had a combined reversal rate of only 71%. These figures, Judge O’Scannlain explains, suggest that the Ninth Circuit’s reversal rate is especially high.
The essay, titled A Decade of Reversal: The Ninth Circuit’s Record in the Supreme Court Since October Term 2000, also notes that nearly half of the reversed Ninth Circuit cases were decided by a unanimous Supreme Court (with fifteen of those being summary reversals). The Ninth Circuit’s poor record is due in part, says Judge O’Scannlain, to the court’s regular “failure to heed the plain text of AEDPA”—the Antiterrorism and Effective Death Penalty Act. And the addition of Justice Sotomayor to the SCOTUS bench “has not affected the Ninth Circuit’s reversal rate.”
Judge O’Scannlain’s brief essay is worth a read for those interested in ostensibly the most progressive circuit. The essay invites several interesting questions. Is the Ninth Circuit’s record really “strikingly poor” if the court’s reversal rate is only 10% above average? Is the high reversal rate merely the product of a remarkably conservative Supreme Court? And will the arrival of Justice Kagan to the Court help the Ninth’s record?