Recently lots of hubbub was made of the Ninth Circuit’s decision to uphold a lower court’s order blocking the Trump Administration from enforcing its executive order on immigration including President Trump’s immediate Twitter response of “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” Right-wing pundits were quick to assail the Ninth Circuit’s credibility. Republican Senator of Arkansas Tom Cotton for instance released a statement saying “This misguided ruling is from the Ninth Circuit, the most notoriously left-wing court in America, and the most-reversed court at the Supreme Court.”
While it is true the Ninth Circuit’s decisions taken up by the Supreme Court for review are often reversed, other statistics show that it is not the most overruled of the federal courts of appeals. To take a deeper look at the question of the relative frequency with which the Supreme Court overturns decisions from the various federal courts of appeals, this post provides comparative statistics.
Review Across Time
First, political science scholarship theorizes and presents evidence that the Supreme Court has a general propensity to grant cert in cases it will overturn on the merits. Based on this and as a general matter, we may expect a greater than 50% reversal rate across courts of appeals. The Supreme Court, however, only reviews a miniscule portion of the cases heard across federal courts of appeals. Based on data from the U.S. Courts statistical tables, federal courts of appeals have terminated an average of 59,389 cases a year since 2005 leading to a total of 653,282 cases.
To get a sense of the fraction of these cases the Court reviews, the Court issued decisions in 873 cases between 2005 and 2015 (the numbers per term are displayed below).
These 873 Supreme Court decisions equates to about .1% of the cases heard across federal courts of appeals and the federal courts of appeals are not the only sources for Supreme Court cases.
How often does the Supreme Court review cases from the individual lower courts? This changes across time and depends on the time frame we choose.
Looking at cases since 1980 (and collapsing categories for state supreme courts as well as for state courts of appeals) we get the following chart (based on data from the United States Supreme Court Database).
The Supreme Court heard substantially more cases from the Ninth Circuit than from any other court since 1980 (almost three times as many cases as from the court with the next most cases reviewed).
Focusing on the Roberts Court years, if we look at the percent of the Courts’ merits docket coming from the various lower courts, we get the following chart:
The Ninth Circuit is still by far the leading circuit for cases that the Court reviewed, but the Second and Fifth Circuit switch positions for the next most reviewed court (aside from state supreme courts).
For a separate project, I looked at various statistics for petitions for certiorari filed between the 2001 and 2015 Supreme Court terms from the various lower courts.
Here my co-author and I found that the most petitions for cert come from the Ninth Circuit, followed by the Fifth and Eleventh Circuits.
The chart below though shows the frequency with which the Court granted cert across this period to cases from the various lower courts based on the number of petitions for cert from each.
Based on this chart, the Court granted cert to a much lower percentage of decisions from the Ninth Circuit than from either the Federal Circuit or the D.C. Circuit. This also intimates that one reason that the Court reviews so many cases from the Ninth Circuit is that there are that many more cases coming out of the Ninth Circuit compared to the other federal courts of appeals.
This result is further supported by looking at the number of cases terminated by each federal court of appeal in 2015.
Based on the Court’s eleven cert grants in 2015 in cases decided by the Ninth Circuit, the Court reviewed less than .1% of the total cases terminated in that circuit. In fact, the only two federal courts of appeals that approached a .3% review rate of terminated cases for 2015 were the Tenth Circuit and the D.C. Circuit.
Of course all of this does not answer the first question of whether the Court overrules the Ninth Circuit more than other federal courts of appeals.
Looking at overturn rates since Chief Justice Roberts was confirmed to the Court, the following chart shows that the Ninth Circuit is not the most overturned Circuit.
When accounting for cases that are reversed or vacated (and/or remanded) the circuit with the highest overturn rate is the Sixth Circuit. While the Ninth Circuit has the second greatest percentage of cases overturned of the federal courts of appeals at 79%, there are three other courts with over 70% overturn rates. In fact, the First Circuit is the only federal court of appeal that averaged less than a 50% overturn rate since 2005.
If we look at the Court’s cert grants for 2016, a similar pattern of grants continues.
The Court granted cert in eleven cases from the Ninth Circuit, followed by seven from the Federal Circuit and six from the Sixth Circuit.
Two takeaways from this analysis though show that one reason for the high number of grants to cases from the Ninth Circuit has to do with the large number of cases that circuit hears, and that (corroborating previous findings on SCOTUSBlog) the Ninth Circuit is not the most overturned of the federal courts of appeals.
On Twitter: @AdamSFeldman