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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
I didn’t look very far back but I don’t think that SCOTUSblog keeps statistics much farther back than the turn of the century.
I wouldn’t trust Epstein’s opinions on any of this immigration EO stuff. He went off the deep end and called for Trump to resign over this, which is a complete overreaction.
Uh, okay that wasn’t really the point of the OP.
One of the reasons that the Court takes appeals is because the justices believe that the lower court has erred in an important way. That being the case, you’d expect a less than 50% success rate. Huzzah for the 1st, 4th, 7th, 10th, and DC circuits!
True, but it only takes four votes to grant cert., and five to reverse.
Well, that explains why its not a 100% overturn rate, right?
When the judges choose which cases to take they are armed with a reasonable understanding of how their colleagues are likely to vote. Thomas doesn’t spend a lot of time taking cases to vindicate his understanding of the Dormant Commerce Clause. Breyer has been particularly outspoken about his lack of interest in writing dissents.
There are a number of different grounds on which cases are accepted. Occasionally, they can be novel questions, in which case you’d expect the appeals courts to do better than 50%. More often they will be circuit splits, which will agree with a majority of the circuits slightly more often than they agree with the minority, but which almost by definition come close to an even split.
It’s also worth remembering that there are degrees of error and a variety of ways to judge the courts. Because 9th circuit opinions are more likely to be wrong in liberal ways than opinions from better courts they’re likely to stand out more for us than the Floridian opinions (and more likely to excite partisan views from the other side, too), there’s more drama there. Jamie’s analysis is useful in providing a check, but Duane and common sense should tell you that there’s a reason for our understanding of the insight of the 9th Circuit. Hannity chooses statistics that sound better but show less than Rodin’s statistics, and Jamie helps to push us closer to looking at those numbers.
If nothing else, Jamie will hopefully be leaving the thread with a better sense of why he should be ashamed to be a Californian than he had before he started to research his post. ;-)
Hence we need Ricochet.
Also, this post points out that the most pertinent facts are usually brought to our attention by some acquaintance who just happens to be familiar with the situation, either an expert in the field or someone involved in said situation. We should be able to trust news sources to dig deep enough to get and report correctly but sadly they usually don’t.
If I understand this rightly, the percentages listed in the table are overturns on cases brought to the SCOTUS. Jamie appears to go into more depth on that in the following paragraph, but Rodin’s first comment is more direct.
Basically, if a court case gets through the appeal process to the SCOTUS, it will likely be overturned. It would technically be more valuable to judge a court by percentage of total cases heard that go to appeal and are overturned, which it doesn’t look like that’s the numbers presented. But even that, as other comments state, wouldn’t be a valuable measure as it does imply some sort of working court system.
And since the courts are the law of the land regarding our constitution, any of us going in and reviewing those cases on constitutional merits will have as much impact as a fart in the wind.
This is correct.
Yes and no. Many times the Supreme Court takes a case because lower courts have reached conflicting results. What is called “a split in the Circuits.” So the most meaningful statistic might be how the Ninth Circuit fares when some other Circuit has ruled the opposite way. Then it’s not just SCOTUS saying “we don’t like what you did,” but rather SCOTUS saying “we’re going to decide which lower court got it right.”
The work needed to comb through that much data was more than my lunch break could handle.
Absolutely. To meaningfully assess the “error” rate of a circuit court you need to understand the extent to which SCOTUS disparaged the reasoning of the lower court. And even then, a 5-4 decision by SCOTUS overturning a lower court decision could imply a much closer case than the majority opinion might describe.
Maybe the best indicator is in cases reviewed due to diversity of opinion between the circuits so that you clearly see which circuit(s) got it right and which circuit(s) got it wrong and why.
In the current case, both the district court and the 3-judge panel seem to me to be very creative in their reasoning and decision-making. But until (and if) there is a SCOTUS review we really don’t know where their thinking resides in the firmament of legal reasoning.
Excellent post, Jamie!