Someone once said, "Statistics are like a bikini. What they reveal is interesting but what they conceal is vital."

So is the little stat lesson on the Court.

The first thing that jumps out is the disconnect between appeals to the court and granting of cert. Granting of cert is an activity of SCOTUS, not the 9th Circuit.

What is concealed in this dance is the relative numbers/percentages of on-the-merit cases. The author makes a big deal about all the on-the-merit cases from the 3rd and 5th being overturned. However, if that represented only 1 case from each of them and all the cases from the 9th were on-the-merit, then the comparison is bogus. Since the author is an attorney, it is difficult to write this flaw off to chance. I certainly hope he has never tried to convince a jury to convict based on flip-flopping between percentages and actual data numbers although a defense lawyer might gamble that confusing the jury might create doubt, but then again it might just discredit the defense.

So let's put down some real numbers this time.

First, Seltzer compares the excess number of cases from the 9th to those granted cert., a measly 9 cases, and then compares this to the total on the merits of the entire 9th circuit.

However, SCOTUS gets 7000 requests for cert every year. These cases are reviewed by the law clerks and recommendations made as whether or not to grant cert. This is in effect letting lower court rulings stand. Seltzer does not offer any stats on the 9th circuit for this. Do more 9th Circuit grants get accepted?

Actually categorizing them is fairly bogus this way anyhow. Most requests for cert are from convicts in jail. Occasionally, these get granted but not usually.

Here Seltzer's math gets fuzzy.

He states that 18-20% of the 73 SCOTUS cases are population weighted to be from the 9th circuit.

But then he claims that 1.5 to 2 times as many or 9 cases total were in excess of the 18-20%.

18% of 73 equals 13 cases plus 9 "extra" cases equals 22 cases or 30% of the SCOTUS cases.

20% of 73 equals 15 cases plus 9 "extra" cases equals 24 cases or 33 % of the SCOTUS cases.

With a reversal rate of 87% average that means that 21 out of 24 cases were reversed or about 25-29% of the SCOTUS case load was spent straightening out the 9th Circuit.

How does this jive with the 32.8% number. Obviously the 20% number is the real number

The airy arguments about comparing on-the-merits is I supspect speculative since it is difficult to discern how the Court weighted things; that is if there were factors other than on-the-merit, what roll did the justices give. Example in a 5-4 decision 2 justices might have given a concurring opinion (agrees with the decision but for different reasons). What is Selzer trying to tell us. That the 9th has a good heart but is incompetent otherwise?

Now the most interesting part is Selzer's quoting Stevens on the current court not sticking to precedent but then explains the variance of the 9th's decisions for these reasons:

"They may want to test an idea or take a stance that's at odds with the current direction of the Supreme Court."

"The lower court judges may be bad at predicting what the Supreme Court will approve or disapprove. Or they may not care."

"Or they may perceive that existing law, as previously dictated by their own circuit or by earlier Supreme Court decisions, requires a certain outcome, even as they understand the justice may change that law if they take the case for review."

This last statement is the most interesting. The spin of the "previously dictated by their own circuit", is certainly a disingenuous way of saying (predicated on the turnover rate for the 9th circuit) that when overruled by SCOTUS, that the 9th circuit will ignore SCOTUS. This is confirmed by the first reason listed above from Selzer. Since when are lower courts allowed to take stands against higher courts? And as Selzer puts it in the next reason, "they (9th circuit) do not care."

Yet Selzer suggests with a moan that in his opinion SCOTUS did not follow precedent. I have a few consolations for Selzer why SCOTUS did this:

SCOTUS may have wanted to test an idea or take a stance that's at odds with the current direction of the 9th Circuit

"The higher court judges may not care what the 9th Circuit decided."

"Or they may perceive that existing law, as previously dictated by SCOTUS or by earlier Supreme Court decisions, requires a certain outcome, even as they understand the justice may change that law if they take the case for review."

Great post!

You raise some really interesting points. I don't know if more cert petitions come from the Ninth Circuit than other Circuits, but I would guess that's true given how much bigger the Ninth is than the other Circuits. Are there disproportionately more? That would be interesting to know particularly if the stats suggest there are not proportionally more cert petitions since that would make the rate of granted petitions even more noteworthy.

One point I think bears considering is that the Supreme Court's Rules limit its review to only compelling cases which, most of the time, are cases where any resulting Supreme Court opinion will have a significant precedential effect (e.g., cases where there are conflicts between the Circuits or between a Circuit and a state supreme court). Since the US Supreme Court does not truly review for error, looking at Supreme Court reversal statistics to measure a lower court's error rate is a red herring. Given that the Supreme Court actually reviewed less than one half of one percent of the Ninth Circuit's cases on their merits, I think inferring much about how often the Ninth commits error in its decisions from a sample size that small is pretty risky.

As to the question of looking at on-the-merits review, as opposed to looking at what the Supreme Court did with petitions for certiorari, I think the Supreme Court's precedent makes clear that cert denials are dangerous bits of evidence to rely upon. The Supremes have warned many times that a denial of cert should not be considered an endorsement or repudiation of the holding below - it is nothing more or less than the Court refusing to hear the case. The Court is not bound to decide similar cert petitions the same way and just because a petition got denied this last term, does not mean one raising identical issues next term will not be granted. For that reason, I would be leery of imbuing cert denials with any imprimatur of Supreme Court approval.

Finally, just a short word on whether any Circuit judge ought to "care" about what the Supreme Court is doing or has done. Certainly, lower court judges ought to care about what the Supremes are doing. More to the point, if the Supreme Court has ruled on an issue, the lower courts are bound by that ruling and must care about it and follow it. What about, though, when the Supremes have not yet ruled on a question or have ruled on many similar questions but the composition of the Court has changed since the last time a similar case was decided? Stare decisis (the legal principle that requires lower court judges to obey the rulings of higher courts and that provides that cases decided today will be decided similarly to cases decided yesterday) requires a Circuit Court of Appeal to follow the directions of previously published case decisions that are controlling in that Circuit. That's true even if judges on that lower court think that the newly constituted Supreme Court might decide the case differently if they got a crack at it. I would submit that a Judge goes astray if he looks at a published opinion and says it requires Result X, but votes for Result Y because he thinks Chief Justice Roberts doesn't much care for Result X. If the Supreme Court wishes to abandon its precedent, that's a prerogative of the Supreme Court and not something a lower court judge ought to do anticipatorily.

Thanks again for posting!

Cullen

Equally good followup. Let me add to your post that lower courts do ignore SCOTUS from time to time. A good example of that is the fictious claim of the press to protect sources. Lower courts have tended to support this bogus claim even after SCOTUS ruled. The weird part is the obvious lack of a test to prevent abuse. It is bad enough that a reporter can scrape up some street person to quote in defamation of someone, but to ascribe it to an anonymous source is worse only topped by a worst case when the source is namelessly identified as having some authority (eg., a high ranking official). The only thing that keeps secret sources alive is the political arena where a charge is as damaging as a conviction or even more extreme where an anonymous charge results in an official fishing expedition. Talk about being denounced to the Inquisitors, this is it.

Another point to consider is the fact that SCOTUS picks the cases it wants to hear. Topic is probably more important than the location of the lower court. The size of the 9th assures that it will have lots of cases to choose from.

Not necessarily. SCOTUS resolves conflicts in decisions from the 12 Circuit districts. Size doesn't matter in that case as much as differing decisions. So a decision from a small district is just as much in conflict as one from the 9th.

Well, I agree that a conflict among the circuits can result in a grant of cert but it's certainly not the only reason. Be pretty hard to come up with statistics on the issue because, for one thing, we'd have to accept the court's stated reason for accepting the case as true.

The Court also hears Constitutional appeals which are usually from convicts, original jurisdiction cases between states, and national importance issues such as Bush v Gore. While there can be some overlap, most are usually cleaning up from appeals courts.