A decade of reversal: the Ninth Circuit's record in the Supreme Court through October term 2010.

AuthorO'Scannlain, Diarmuid F.

Thank you for inviting me to speak with you today.

Reflecting on the beginning of another Supreme Court term next month, I thought I would take the opportunity to reflect on how cases from my own court have fared over the past decade.

I would like to start with a review of my court's performance before the Supreme Court from October term 2000 through October term 2009. I will then say a few words about the October term 2010.

I

The Ninth Circuit's record, I am afraid to say, has been strikingly poor. From the 2000 term to the 2009 term, the Supreme Court rendered full opinions on the merits in 182 cases from the Ninth Circuit. (1) In 148 of those cases, the Supreme Court reversed or vacated our decision. (2) In other words, our court got it wrong in eighty-one percent of its cases that the Supreme Court agreed to hear. That's a .190 batting average. (3)

By contrast, in the past decade, the other twelve circuits had a combined reversal rate of only seventy-one percent--ten percent lower than that of the Ninth Circuit. (4) Consider, as well, that over the same period, the Supreme Court's reversal rate of state-court decisions was only about seventy-six percent. (5) So, even the state courts, as a whole, appear to be better at interpreting federal law than the Ninth Circuit. (6)

Even more telling than the reversal rate itself, however, is the number of unanimous reversals. Seventy-two of the 148 Ninth Circuit cases reversed during the last decade were at the hands of a unanimous Supreme Court. (7) Put differently, in about one-half of all the cases in which our court was reversed, not a single justice agreed with the Ninth Circuit's decision. To quote Akhil Amar of Yale Law School: "When you're not picking up votes of anyone on the [Supreme] Court, something is screwy." (8)

To add insult to injury, our court was summarily reversed fifteen times--that is, reversed by a short, unanimous opinion, without the benefit of briefs on the merits or oral argument. (9) Summary reversals are, in the words of Chief Justice Roberts, "bitter medicine," because they are reserved for cases in which the lower court's error is so "apparent" that neither briefing nor argument is necessary. (10) Unfortunately, approximately one in ten Ninth Circuit cases reviewed by the Supreme Court results in a summary reversal. (11)

While about half of the cases reversing the Ninth Circuit were decided by a unanimous court, a mere fourteen percent were decided by a five-to-four vote along traditional "conservative-liberal" lines. (12) Thus, though it is true that there have been five so-called "conservatives" on the court over the past decade, the fact remains that in the vast majority of cases, it is not just the conservatives who are voting against the Ninth Circuit. In the 2002 term, for example, the Supreme Court reversed the Ninth Circuit eighteen times. Justice Breyer voted to reverse the Ninth Circuit eleven of those times. (13) Given the number of unanimous reversals, as well as the general frequency with which even so-called "liberal" justices vote to reverse, it is safe to say that reversing the Ninth Circuit is much more than just a matter of ideology.

It is also worth noting that Justice Sonia Sotomayor's arrival at the court in 2009 has not improved the Ninth Circuit's success rate. In the 2009 term, the Supreme Court rendered full opinions on the merits in fifteen cases from the Ninth Circuit. (14) Eleven of the fifteen were reversals, and five of the reversals were unanimous. (15)

Beyond reversal rates, another metric of a circuit's performance is the amount of times the Supreme Court grants certiorari in its cases. After all, because the Supreme Court often grants cert because it senses a problem, a circuit that is doing well, arguably, receives relatively few writs of certiorari. Sadly, the Ninth Circuit does poorly in this area as well.

In the past decade, about thirty percent of the Supreme Court's writs of certiorari to federal courts of appeals were issued to the Ninth Circuit. (16) Even though the Ninth is the largest circuit and decides roughly one-fifth of the cases before the federal appellate courts, thirty percent is still a disproportionately large share of cert grants.

II

There is one area in which the Ninth Circuit's record is especially troubling: writ of habeas corpus cases. It seems that at least once every term, the Supreme Court has to remind us about the proper standard of review in habeas proceedings under the Antiterrorism and Effective Death Penalty Act (affectionately called "AEDPA"). (17)

For those unfamiliar with the statute, AEDPA prohibits federal courts from granting habeas relief to state prisoners on constitutional claims adjudicated in state court, unless the state-court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," (18) or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." (19) Review of state-court decisions under AEDPA is thus highly deferential; for habeas relief to be warranted, the state court decision "must be shown to be not only erroneous, but objectively unreasonable." (20)

This rule reflects the deference that federal courts owe to the states as a matter of federalism. It also reflects the fact that there are simply too many state criminal convictions and not enough federal judges for federal courts to give each state criminal defendant a full rehearing under habeas corpus.

A

But, again and again, the Supreme Court is forced to remind us of this rule. For instance, recently, the Supreme Court determined that "the Ninth Circuit did not observe [the] distinction"--between a decision that is "unreasonable," and a decision that is merely "incorrect." (21) Instead, the Supreme Court concluded that the Ninth Circuit, in granting a state criminal defendant a new trial, inappropriately "substituted its own judgment for that of the state court." (22)

In another instance, a case called Waddington v. Sarausad, (23) the Ninth Circuit took up the cause of a defendant who had been convicted of acting as the driver in a drive-by shooting outside a Seattle school that arose from a gang dispute. (24) A jury in a Washington state court found the defendant guilty of second degree murder, but the Ninth Circuit determined that the defendant deserved a new trial, because one of the jury instructions at trial was too ambiguous. (25) The Supreme Court reversed, and criticized the Ninth Circuit for "dissect[ing]" and "exaggerat[ing]" parts of the record to justify its ruling. (26) In short, the Supreme Court asserted that the Ninth Circuit "failed to review the state courts' [decisions through a] deferential lens." (27)

Or take Uttecht v. Brown. (28) In that case, a jury in Washington State found the defendant guilty of a horrendous murder and determined unanimously that he should receive the death penalty. (29) The Ninth Circuit, however, overturned the sentence, because our court believed that the Washington trial court improperly excluded a potential juror who had expressed misgivings about the death penalty. (30)

The Supreme Court again reversed and held that the Ninth Circuit did not accord the Washington state court enough deference and thereby "failed to respect the limited role" the federal courts should play in reviewing state criminal convictions and sentences. (31) This passage echoed the Supreme Court's sentiments in a prior case which also reversed the Ninth Circuit. In that case, the court explained that AEDPA "leaves primary responsibility with the state courts" for determining who has violated state laws and punishing the offenders and "authorizes federal-court intervention only when a state-court decision is...

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