2/21/17

Does the 9th Circuit really have an 80% reversal rate?

This is quite good.

Does the 9th Circuit really have an 80% reversal rate?

On the uber-liberal scurrilousness of the 9th Circuit, the one that slapped Ol' Heel Spurs into next week, here is a pretty good examination and analysis:

The surpassingly small number of reviews made it difficult to set up a metric that could distinguish between the courts. Dealing with variant outcomes within 0.109% of an overall data pool makes outcomes statistically insignificant, as the ABA hinted in its report.

The ABA decided to use both to some extent, but even the latter method (reviewed cases only) does not show the Ninth Circuit as wildly off the scale. In fact, they’re only second highest in reversal rates, and the distribution is remarkably close to the median: (See Fig 2 in the article)

This is where the selection bias of using only certiorari-granted cases shows up. Every circuit has more than half of its decisions selected by the Supreme Court for review overturned, and the median is 69%. The deviation of performance between the circuits is hardly dramatic.

Perhaps a better metric would be the percentage of cases reviewed by the Supreme Court. In this comparison, the Ninth Circuit ends up a little farther off from the median, but it’s only third “worst”: (See Fig 3 in the article)

The DC Circuit deals with more constitutional issues with federal government, the kind of cases in which the Supreme Court will naturally have a higher interest, which likely accounts for its highest review rate. But the percentages are so low here as to make comparisons insignificant statistically, the very problem that the ABA noted in its own report.

It’s true in a very narrow sense that the Ninth Circuit has an 80% reversal rate for that ten-year period, but it’s also true that they have a 0.123% reversal rate — and that’s actually the more accurate way to view their performance.

However, the ABA report does give evidence of another kind about the performance of the Ninth Circuit. As noted above, that circuit handled 18.9% of all appellate cases, far higher than any other circuit; the next closest was the Fifth Circuit, with 14.1%, and then the Eleventh Circuit with 12.3% of all appellate cases decided. Those three circuits heard slightly over 45% of all appeals, while the rest heard fewer than 10% each. That certainly seems like a good argument for splitting the Ninth Circuit.
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The best argument for splitting the 9th is not because they are 'uber liberal' but because of the case load. That's a more rational reason than the 'wah wah wah I don't like the 9th because they are so liberal' nonsense. That 'wah wah wah' argument plays well on FB and other relatively mindless forums, like most of the 'conservative' news sources (and I use the term 'news' laughingly) and Ol' Heel Spurs' twits, but I really don't think it has a place in determining the structure of the federal court system.

See also:

The 6th Circuit is the most reversed appeals court, if you care

And another fact that might boggle the mind(s) of Trumpians everywhere:

First, when the Supreme Court takes up a case, reversal is the norm. The Supreme Court is a court of discretionary review -- it does not take up cases that it believes were rightly decided. Thus, the Court sides with petitioners about 70 percent of the time. Second, the Court reviews only a tiny handful of decisions made by the Sixth or the Ninth or any other court. Those subsequent reversals are outliers much more than indications of the court's overall performance."

The court system is working exactly as it should. "Wah wah wah" arguments of the sort presented by Ol' Heel Spurs and his minions demonstrate nothing more than the abysmal ignorance of our government on their part.