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Lies, Damned Lies, and Statistics
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.
Published in Law
This should be a Facebook post…
Even more mesmerizing, the two completely wacko circuits by this measure are the 6th and 11th. The 6th circuit includes KY,MI, OH, TN and the 11th includes AL, GA and FL. Whats up with that?
Well done, Jamie! It’s pretty hard to know who to trust for the “facts” anymore. I don’t care who it helps or hurts: I want the legitimate facts, and sometimes context matters. Thank you for checking into this issue. My dilemma is deciding what to check out or not. There’s just not enough time in the day to check out everything. Thank you for doing the work for me this time!
Well….Flordia…
I wasn’t the first to do this. I was clued in by a few other websites that pointed me to the statistics archive.
Although, just a glancing observation – – these people sure do contradict each other a lot, don’t they?
Well…lawyers…
The Ninth Circuit’s batting average would have improved a lot if Garland had been confirmed.
But would the Supreme Court’s batting average have improved?
Sean Hannity is being misleading? The Sean Hannity?
No way!
Maybe it’s time for Congress to eliminate the Ninth Circus Circuit Court. They can’t remove the judges from the court, but they can eliminate it altogether.
What about the 6th and 11th?
I think the table is problematic. You don’t take cases to the Supreme Court just to say “Yup, you got it right.” If the Supreme Court takes the case the odds of reversal — at least in part — go way way up regardless of the circuit. That is so for cases which raise a constitutional problem without diversity of opinions among the circuits. If the case is taken to resolve a question as to which circuit’s reasoning the Supreme Court supports then, obviously, one or more circuits will be affirmed and others reversed. So a table that simply shows the overall rate of reversal takes you only part of the way to the answer.
Also distorting the picture is the fact that vastly more cases from the 9th circuit are accepted for review. Population may account for much of this. But it is interesting to compare the percentage that the 9th circuit represents to the total cases reviewed with the percentage of reversals to the total cases reversed. I could not find the posted table at the website or replicate the data in the table. I could find data for OT10 and OT15. CA9 had 32% of reviewed cases and 33% of the reversed cases in OT10. CA9 had 13% of reviewed cases and 15% of the reversed cases in OT15. No other circuit has a higher percentage of reversals than the percentage of total cases reviewed.
Let’s say a court were reversed 100% of the time. Does that justify dismantling the Court? No, that just shows that the entire appellate review process does function. Trump supporters have spilled lots of ink (well, Twitter characters) attacking the judiciary rather than looking at the system as a whole until they make a judgment.
If “elections have consequences” (which they certainly do), it is equally true that the Constitution (and specifically, its system of checks and balances) has consequences. Complaining about the judiciary demonstrates as much of an inability to handle the real world in which we live as people who prefer to pretend that Trump was not elected. Trump must work within the system; the Constitution will not allow him to blow it up.
I don’t think anyone has suggest that, although the implication of your 100% is that a particular court was substantially unqualified.
I believe that is precisely what is under debate. The plaintiffs (and apparently you) believe he is blowing up the Constitution; the Trump “supporters” (whatever than means) believe variously that the EO was good policy, good policy but flawed implementation, flawed policy but Constitutional.
A paralegal once tried to convince me that legalese was actually good because the precise legal language prevented misunderstandings.
I also heard an apocryphal statistic (don’t remember where) that you have a 50% chance of winning/losing a court case regardless of the facts.
Read the whole thread. At least one person did indeed suggest that.
What I don’t understand is how the Zadvydas v. Davis decision plays into this. Page 20, last paragraph of the 9th Circuit Order: “The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they ‘apply to all persons within the United States, including aliens’, regardless of ‘whether their presence here is lawful, unlawful, temporary, or permanent’”.
I’m trying to learn about the process and have a bunch of questions pertaining to this. In the Zadvydas v. Davis decision, Scalia dissented, saying “Due process does not invest any alien with a right to enter the United States, nor confer on those admitted the right to remain against the national will.”, which I completely agree with. So how is it that aliens have due process rights, and is it 1-to-1 relatable to the Stay that’s in question? Further, how could the Supreme Court change interpret the Constitution in such a way that is in the realm of the Legislative branch, wouldn’t the process be to insert the legislation through the Senate first? Further still, aren’t they also claiming power from the realm that belongs to the Executive Branch, as it’s clearly outlined in the statute? Even further still, doesn’t this following link from Schumer kind of call into questions the incentives of those involved in this court decision:? http://www.breitbart.com/video/2017/02/12/schumer-gorsuch-nomination/
I said that. Did you read the piece?
If you think that the EO was facially constitutional, you are demonstrably flat wrong because, as we are all now aware, it permitted discrimination against LPRs based on national origin. A corrective measure was needed to even give the Trump Administration any chance at arguing that the EO was facially constitutional. More to the point, here the District Court imposed a stay in order to preserve the status quo, but has not yet ruled on the merits. Do you really think the judicial branch lacks the Constitutional authority to issue such a stay? If so, why was it permissible for the Texas District Court and the Fifth Circuit to temporarily stay Obama’s hand with respect to the DAPA program? Please, make that distinction based on something other than your particular views about the “wisdom” of Trump’s policy.
Yes, @ponyconvertible did do a little bomb throwing there. But the idea that the 9th Circuit should be divided into two circuits has some merit.
I think the problem is that for some odd reason, the vast majority of the Fed Judges have been appointed by Dems. I think it is well over 60%. Trump is the first President to inherit 100+ empty seats since Clinton. Even when Bush’s and Reagan were at the helm, they let lunatic Senators from California pick judges for empty 9th circuit seats. It seems as though Clinton and Carter may not have played by the same rules. Trump has a great opportunity to pack the court with conservatives from coast to coast.
I don’t disagree with the idea that the Ninth Circuit should be divided. But if so, it should be divided for non-partisan reasons. Really, as a practical matter, California should be divided into two (or more) separate states and then the Ninth Circuit divided, but no one is willing to upset the balance of power in the Senate.
You said much of what I put in the first paragraph of #13 but none of what I said in the second paragraph.
I was alluding to it here:
I didn’t have the statistics laid out like you did so thanks for that.
Let me also ask: Is there any good material to learn about all of this stuff from the ground up? Historical precedents, important cases, each court’s relationship to eachother, possible political motivations and scandals, etc.
As you could likely tell from my last questions, I don’t know much in the way of this yet, but I’m cynical and don’t like being bs’d. In other words, I’d like to learn enough to know when I’m getting played =).
Thanks ahead of time.
Law School? (I kid I kid).
Haha. My God, the debt… I’m going numb just thinking about it.
@NYLibertarianGuy, you’ve thrown so much at me. The best I can do within the word limit is to say (1) if LPRs are not excluded from 8 USC 1182 (f) then the EO was facially constitutional even if bad policy, (2) the court could not issue a stay to maintain the status quo of a national security risk (even if bad policy) without exceeding its authority, and (3) Obama did not justify DAPA on national security grounds — he relied on prosecutorial discretion — and the constitutional issues involved whether the EO was impermissible legislating.
Ok – that being said – the percentage of “overturns” on your above list seems unusually high? Is that normal?