SLUMPING: THE EIGHTH CIRCUIT'S SUPREME COURT BATTING AVERAGE IN FEDERAL-SENTENCING CASES.

• Author: Bennett, Mark W.

ABSTRACT

This article responds to the increasing interest in scholarly legal publications of empirical studies of federal judges, in general, and their reversal rates, in particular. While there is one prior published empirical study of the Eighth Circuit, it involved the Circuit's reversal rates for district judges. That study found that the Circuit reversed district judges who had prior affiliations with the Democratic party roughly one and a half times as often as those whose prior affiliations were with the Republican party. This article examines the top side of this issue: How well does the Eighth Circuit fare when its decisions and its positions are reviewed by the Supreme Court? The article compares the Eighth Circuit to its sister circuits, with a special emphasis on federal-sentencing decisions. The data indicate that the Eighth Circuit is reversed more often than the infamous Ninth. It may not be surprising that, in every sentencing decision of the Eighth Circuit reviewed by the Supreme Court over the past twelve years, the Eighth Circuit sided with the Department of Justice. What is surprising is that the Supreme Court reversed those decisions 100 percent of the time. The article also argues for greater transparency for reversal and affirmance rates throughout the federal judiciary.

1. INTRODUCTION

   Professor Steinbuch's empirical analysis of 2008 reversal rates for district judges in the Eighth Circuit appeared in 2009. (1)

   Using logistic regression analysis, he concluded that the heavily Republican Eighth Circuit (2) reversed district judges affiliated with the Democratic Party one and a half times as often as it reversed those affiliated with the Republican Party. (3) This should not be too surprising. As Professor Steinbuch points out, "there is no evidence in this study to suggest that politics was a direct and nefarious cause of the higher reversal rate of Democratic judges." (4) Rather, he found "a latent but discernible correlation between a district court judge's political party affiliation and the propensity of the Eighth Circuit to reverse the judge's decisions." (5) While well beyond the scope of this article, I suggest this is likely due more to differing judicial philosophies than to political affiliation. (6)

   Without addressing the political-affiliation issue, I look at the reverse top-side of this: How well does the Eighth Circuit fare when its decisions are reviewed by the Supreme Court, especially in the federal-sentencing area? In other words, what is that court's batting average in the Supreme Court? For a macro look, and to set a baseline, I compare the affirmance/reversal record--the batting average--of the Eighth Circuit over the decade from 2005 to 2015 with those of the other circuits on all merits cases decided by the Supreme Court. I then narrow the focus to take a more in-depth look at how the Eighth Circuit fared in its federal-sentencing decisions reviewed by the Supreme Court from 2005 to 2015. I chose this time frame because of the constitutional sea change in federal sentencing created by the Supreme Court's landmark decision declaring the Sentencing Guidelines advisory rather than mandatory in United States v. Booker. (7) This sea change generated many federal-sentencing issues for the Supreme Court to decide. For the same decade, I also compare the batting average of the Eighth Circuit in the Supreme Court on federal-sentencing issues decided by the high court in cases arising from circuits excluding the Eighth. (8) Finally, I determined the individual batting averages for each of the Eighth Circuit judges involved in federal-sentencing decisions during the decade both for the Supreme Court's review of those Eighth Circuit sentencing decisions directly--as well as for the Supreme Court's review of sentencing decisions decided from the other circuits--on which the Eighth Circuit had also opined.

   Were there a World Series for the federal courts of appeals over the last decade, the Eighth Circuit franchise would not have been in it. They would not have even made the playoffs. Indeed, by every measure, including batting averages of individual Eighth Circuit judges and team batting averages of panels and the en banc court, the Eighth Circuit most resembled a perennial division cellar dweller--surpassing the infamous Ninth Circuit. (9) Indeed, as discussed in more detail to follow, on the seven at-bats in the Supreme Court on their own federal-sentencing decisions, the Eighth Circuit failed to get on base, striking out seven consecutive times.

   1. Citation Studies

      Before turning to the data on Team Eighth Circuit, a brief overview of empirical research on federal judges is in order. In recent years, the "most prominent approaches" (10) use databases of citations to reported opinions in an attempt to measure "influence," "prestige," or "quality of judges." (11) For example, one of the first empirical studies of judges, by Professors Landes, Lessig, and Solimine, used the citations to published opinions "to estimate empirically the influence of individual judges." (12) The authors conceded that using the number of citations was "at best a crude and rough proxy for measuring influence," (13) yet asserted that their quantitative analysis offers significant advantages over other approaches because it is less subjective and relies less on non-quantifiable factors. (14) Frustrated with the appointment process for Supreme Court

      Justices, Professors Choi and Gulati followed that study with their recommendation for a Tournament of Judges using citation rates as one of several objective measures in a World Series Playoffs-like contest. (15) The "reward to the winner" was not an MVP selection or induction into the Hall of Fame, but "elevation to the Supreme Court." (16) In a follow-up study and article, Professors Choi and Gulati computed their Tournament of Judges to offer to the President and the public their view of the most objectively qualified federal appeals judges to be elevated to the Supreme Court. (17) The Tournament of Judges idea generated significant response, and a lot of Bronx cheers, (18) from the academy, resulting in a law-review symposium on the topic in 2005. (19) Another citation study that used both positive and negative citations to circuit judges' opinions to rank them on judicial quality concluded that a majority of the federal appellate judges "are indistinguishable from one another in terms of the quality of their work product." (20)

   2. Reversal Rate Studies

      In addition to citations, reversal rates are commonly used in empirical studies of various aspects of judicial decisionmaking. (21) Scholars have advocated the use of reversal rates as a measure of judicial quality and they are "commonly used to evaluate circuits." (22) Judge O'Scannlain of the Ninth Circuit has published two articles reflecting on how cases from the Ninth Circuit fared in the Supreme Court in the decade following October Term 2000. (23) He concluded about his own circuit that its decade record in the Supreme Court was "strikingly poor." (24) Judge O'Scannlain determined, in his review of Team Ninth Circuit's batting average in the Supreme Court from 2000 to 2010, that the Ninth Circuit was hitting below the Mendoza Line, (25) at a mere . 190. (26) One scholar has warned, however, that "commentators agree about what the Ninth Circuit's reversal rate is, but they have sharply differing views about its normative implications." (27)

      These quantitative citation studies have revealed empirical information that is not well known in either the legal community or to the public at large, other than the general perception that the reversal record of the Ninth Circuit in the Supreme Court is higher than all other circuits (which is no longer true). (28) The individual batting averages of judges and the team batting averages of courts do not seem to be a matter of much public concern, nor are they readily available to the public. (29)

      It has been observed that federal circuit judges have an "almost-groupie-like following and a set of statistical enthusiasts who take a back seat only to the zeal of sports statistical buffs." (30) Yet it is important to note that the issue of Supreme Court reversal rates for the circuits is "complex and nuanced." (31) Because the granting of review from the courts of appeals is almost always discretionary, and no reasons for the decision of four Justices to review a lower court decision are generally given, the decision to review a case is clouded in secrecy and not amenable to meaningful quantitative analysis. Thus, Senior Judge Edwards of the D.C. Circuit has warned that quantitative analysis of judicial decisionmaking "must be viewed with great caution." (32) One of Judge Edwards's caveats is that "[Regression analysis does not do well in capturing the nuances of human personalities and relationships, so empirical studies on judicial decision making that rely solely on this tool are inherently flawed." (33) Yet others defend the use of "reversal rates as performance indicators for circuit judges." (34) Professor Sisk has eloquently described the balance between empirical analysis and the more traditional theoretical and doctrinal approach:

      Empirical study of the courts should remain a mainstay of legal scholarship: it reminds us of the reality of multifarious influences on judges, allows us to identify patterns that are not readily discernable in unsystematic reading of opinions, and offers us significant explanatory power in certain discrete categories of cases. However, theoretical and doctrinal work will never be supplanted. Judges have long insisted that the tools of the law--the text and structure of legal documents, procedural requirements, legal history, common-law reasoning, and precedent--remain essential elements to fully understanding and deciding a legal controversy. Because of difficulties in quantifying legal elements for empirical...