This year, the Supreme Court overturned 15 of the 16 cases originating from the Ninth Circuit Court of Appeals. The largest of the circuits, the Ninth encompasses California, Alaska, Arizona, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, and Washington. However, 10 of the 16 Ninth Circuit cases arose out of California’s district courts.
With so many cases overturned, the Ninth Circuit faced an unusually high reversal rate of 94% for the October 2020 term. The Ninth’s average reversal rate since 2007 was just 79%. The last time the Ninth had a higher reversal rate was in 1985, when 25 of 26 cases were overturned.
Because the Supreme Court overturned more cases than usual this year overall, reporters have argued that the Ninth’s abnormally high correction rate is not cause for concern. Some imply that the conservative Supreme Court must have something against the liberal Ninth. Others point out that the large size of the circuit explains why so many cases emerge from the Ninth.
But none of the arguments sufficiently address the anomaly.
First, while this term’s overall reversal rate was 9 percentage points higher than the average, the Ninth’s individual rate was still 15 points higher. So, the Supreme Court’s higher overall rate of reversal does not entirely explain the issue.
Secondly, those speculating that the conservative leaning Supreme Court has something against the Ninth would do well to remember that President Trump effectively flipped the Ninth Circuit by naming 10 judges to the court during his tenure. Furthermore, 10 of the 16 cases that emerged from the Ninth were not voted along ideological lines. 8 of those 10 were unanimous decisions – including cases on immigration and property rights.
And finally, it is true that comparing the reversal rates of one circuit to another circuit is like comparing apples to oranges. Each year, the Ninth Circuit will almost always have the most cases that go to the Supreme Court because of its sheer size. Conversely, the First Circuit, the smallest of the thirteen U.S. Courts of Appeals, may only have one or two cases taken up.
To account for differing jurisdiction sizes, it is better to look at how often a federal circuit court is reversed for every thousand cases taken up by the Supreme Court. In a 2018 study, Brian T. Fitzpatrick, a law professor at Vanderbilt University, did just that. He found that the Ninth Circuit did indeed have the highest reversal rate in the country, at 2.5 cases overturned per thousand. The second highest rate was the Sixth Circuit at 1.73 cases per thousand. Perhaps most revealing, the Ninth’s reversals were unanimous decisions three times more often than any other circuit.
So, if the Ninth’s abnormally high correction rate does not necessarily have to do with size or ideological warfare, what can account for the deviation?
Perhaps a significant factor comes down to the short-sighted and ultimately unconstitutional policies put forth by California’s lawmakers.
In Cedar Point Nursery v. Hassid, the Supreme Court struck down a California regulation that allowed union organizers onto private farm property 120 days a year for three hours a day – a significant governmental intrusion of property rights.
Under former California Attorney General Kamala Harris, her department exposed the identities of donors through regulations that required 501(c)(3)’s to disclose major donors. Many charities, including PRI, argued that the disclosures would lead to harassment. In Americans for Prosperity Foundation vs. Bonta, the Supreme Court upheld First Amendment rights and struck down the California regulation.
In a case about California immigration law, Garland v. Dai, the Supreme Court unanimously vacated the Ninth’s decision. And in Nestle v. Doe I, the Supreme Court ruled 8-1 against the Ninth’s unprecedented decision that U.S. corporations could be held responsible for alleged international human rights violations.
Thankfully, our constitutional checks and balances can correct the follies of California lawmakers and judges. But, with so many controversial cases emerging out of California, one must ask: what must be done to curb the violation of our protected rights in the first place?
McKenzie Richards is a development associate at the Pacific Research Institute.