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Like many of you, I was appalled at the shoddy reasoning exhibited in the recent 9th Circuit Court opinion governing President Trump’s executive order. Subsequent reading has only further muddied the waters for me, but today’s post by the great Richard Epstein has calmed me down a bit.
Regardless of the merits of this particular case, one thing that all conservatives can agree on is that the 9th Circuit is a disgrace. Overwhelmingly liberal and a fine example of a corrupt judiciary run amok. I mean the 9th circuit has been overturned 80% of the time in recent years! This is fact. I know, I heard it from Hannity.
It turns out that this statistic is misleading. Perusing SCOTUSblog’s Stat Archive one finds that the picture is not quite as obvious as the one painted by the Right Wing of our media. For the years 2010–2015 it is true that the 9th circuit has been overturned about 79% of the time, but this does not make it “the most overturned court in the country” nor does it appear to be wildly outside the norm. Here is how the statistics break down:
6th Circuit – 87%
11th Circuit – 85%
9th Circuit – 79%
3rd Circuit – 78%
2nd Circuit and Federal Circuit – 68%
8th Circuit – 67%
5th Circuit – 66%
7th Circuit – 48%
DC Circuit – 45 %
1st Circuit and 4th Circuit – 43%
10th Circuit – 42%
At least the 10th Circuit appears to be doing pretty well (Go Neil!).
Furthermore, as my resident Legal Expert, the brilliant and beautiful Mrs Lockett, informed me these statistics tell us next to nothing about the merits of any particular district court. First, these statistics only measure cases where the Supreme Court has granted Cert, which leaves out hundreds of cases during the measured period. Second, cases granted Cert by the Supreme Court stand a greater than average chance of being overturned as they represent a genuine controversy exists or that two jurisdictions have come to different conclusions on the merits. Third, the 9th circuit represents one of the most populous and diverse regions in the nation and handles many more controversial cases than many of the other districts. Finally, that statistic would only be significant to Conservatives if the Supreme Court was considered “conservative” – no one on our side would be making this argument if the Warren Court were overturning 5th Circuit Court opinions at an alarming rate.
What can we learn from this? Judge things based on the merits and don’t just accept statistics at face value, especially when they confirm your biases.