Major Players in the Lower Courts

Cases’ contours are primarily defined by the time they reach the Supreme Court.  These contours take shape through litigation in lower courts.  In the lower courts, judges make decisions that are by and large upheld as they are generally are left untouched.  Even if appeals courts wanted to take a larger role in the universe of litigation, they often do not have the resources to do so.

There are discernible patterns in the small selection of cases that does make its way to the Supreme Court.  These patterns often stem from signals that alert the justices to the importance of cases.  One such pattern that this blog previously covered is dissents in appeals courts and especially dissents from particular judges.  This post looks at more data on lower court dissents as well as on other aspects of appeals court cases that may signal the significance of these cases to justices.  In doing so it helps point out the importance of the lower courts in informing the Supreme Court of specific cases that should be reviewed and of specific judges that are integral in this process.

The previous post on this subject tackled cases from 2011 through 2016. The data in this post tracks cases beginning with the start of the Roberts Court in 2005 and ending with this current term’s (2017) cert grants.

Multiple cases that the Court will hear or has already heard this term are products of appeals court cases with dissents.  This includes cases with dissents from judges that have particularly high rates of dissents leading to cert grants as well as cases with majority appeals court authors who have already had several of their previous decisions reviewed by the Supreme Court.  This also includes four cases in which the Court will hear arguments over the course of the next two weeks or during the current argument session, namely: NJ Thoroughbred Horsemen Assn. V. NCAA and Rubin v. Iran.  The list of cases granted for this term with lower court dissents is below along with the majority and dissent authors.  I will return to these authors whose majority and dissenting opinions have played large roles in the Roberts Court’s history of case grants later in this post.


The 2017 cert grants share characteristics with cases from previous terms.  The cases cluster, for instance, based on specific lower court circuits.  The 9th Circuit, the largest federal appeals circuit in terms of geography and population and the circuit with the most cases that the Supreme Court later hears, is also the progenitor of more Supreme Court cases with lower court dissents this term than any other circuits with five of the fifteen cases (Ernst and Young, Dimaya, Lakeridge, Digital Realty Trust, and Kernan).  The only other circuits with multiple cases with dissents granted cert so far this term are the 6th (NAM and Husted) and 11th (Sellers and Dunn).  The dominance of cases from the 9th Circuit’s on the Supreme Court docket is both a logical outcome of the number of cases that circuit hears and is an already documented trend.  The next chart goes a step further looking at the cases the Roberts Court has taken on cert with lower court dissents from the various courts of appeal.

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Not surprisingly cases from the 9th Circuit with dissents also lead this pack.  The 9th Circuit is not only the largest circuit but is also notoriously dubbed the most liberal.  Although with many fewer dissents leading to cert grants, the 6th Circuit has the second most such instances of the federal appeals circuits during the Roberts Court years.  On the other end of the spectrum, there was only one case with a dissent from the 1st Circuit that led to a cert grant over the same period.

Appeals Court Judges

Continuing with this trend, specific judges have had multiple dissents leading to cert grants during the Roberts Court years.  The following chart tracks those appeals court judges with three such dissents or more.

Dashboard 1

Four of the ten judges with the most dissents leading to cert grants are from the 9th Circuit.  The judge with the most such dissents is a Reagan nominee- Diarmuid O’Scannlain.  Following O’Scannlain are three Geoge W. Bush nominees – Judges Bea, Bybee, and Callahan.  This fits with the rationale that more conservative judges on the 9th Circuit will alert the Supreme Court of specific cases to take with liberal decision dimensions.

The Court still may affirm lower courts decisions after deciding to take cases on cert.  The Court, however, tends to overturn more decisions than it upholds.  The next chart looks at the dissenting judges leading to multiple cases either affirmed or overturned upon Supreme Court review.

Dashboard 11

Of the dissenting judges whose decisions did not lead to overturned rulings in the Supreme Court, three of the four are from the Federal Circuit.  By contrast, all of O’Scannlain’s nine dissents relate to decisions that the Supreme Court later overturned.  This rate of reversal speaks to Judge O’Scannlain’s efficacy in deciding when to dissent and what information to highlight in these dissents.

On the other side of the coin, many lower court judges have had several of their decisions reviewed by the Supreme Court when dissents accompanied their majority opinions in the courts of appeal.  The next chart looks at those majority authors who had more than one of their majority decisions with an accompanied dissent either affirmed or overturned after Supreme Court review.

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Continuing with the trend of 9th Circuit judges, Carter nominee Judge Reinhardt has had more majority opinions with accompanying dissents overturned by the Supreme Court than any other appeals court judge.  Although the margin of difference between Judge Reinhardt and the next judge on the list is substantial, 6th Circuit Judge and Clinton nominee Judge Cole is the judge following Judge Reinhardt.  Judge Berzon from the 9th Circuit, also a Clinton nominee, is the only judge with multiple majority opinions with accompanying dissents that have been both affirmed and overturned.

When we look look at majority/dissenting pairs of judges with multiple cases reviewed by the Supreme Court that were either affirmed or overturned, several relationships stick out.

Dashboard 1 (4)


Most prominently, Just Reinhardt is brought back into the fray as the only majority author as part of more than one dissenting pair leading to SCOTUS review.  These Reinhardt decisions were all overturned by the Supreme Court.  The O’Scannlain/Reinhardt pair is the only pair with more than two dissents leading to review as well as to overturned decisions.  Judge O’Scannlain also dissented in three cases without majority authors that lead to Supreme Court review and where the lower court decisions were all overturned.

The SCOTUS Component

While lower court judges play important roles in these cases, ultimately the Supreme Court justices make the decisions of which cases to hear and of how to rule.  Bringing the Supreme Court justices into the discussion, the next chart looks at the number of majority decisions authored by each of the Roberts Court Justices that were preceded by dissents in the courts of appeal.

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Justice Kennedy wrote more of these majority decisions than any of the other justices.  This is interesting for multiple reasons. First, Justice Kennedy tends towards the ideological median on the Court. Second, as the swing justice, Justice Kennedy tends to write decisions in cases where the other justices disagree.  This points to dimensions of cases with dissents in the lower court that lead to Supreme Court review – specifically those cases that created contention between judges in the courts of appeal and between justices in the Supreme Court.  Even though Chief Justice Roberts was on the Court for the entire period covered in this post, he authored fewer than half of the majority decisions in such cases as Justice Kennedy.

How did the justices rule in these cases? This is covered in the next chart (decisions that did not lead to entirely affirmed or overturned decisions were removed).

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72% of these decisions with majority opinions from Justice Kennedy overturned the lower court decisions.  While this overturn rate seems high, the Court generally tends to overturn lower court decisions in about 60% of the cases it takes.  Justice Alito overturned the most decisions of the justices with 36.  His overturn rate is also higher than Justice Kennedy’s at 84%.  Still the justice with the highest overturn rate is Justice Ginsburg at 93%.  This alludes to the types of cases with lower court dissents that the justices hear as Justice Ginsburg tends to side with the dissenting justices to a higher degree than the other justices.

Certain Justices also tend to author majority opinions after the dissents of specific lower court judges.  These relationships are conveyed in the final chart.

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Building from the previously described trends, the only justice/dissenter pair with more than two dissents leading to Supreme Court decisions overturning the lower court majority decisions is Justice Kennedy/Judge O’Scannlain.  Judge O’Scannlain also shows up on this chart more than any other lower court judges with two dissents leading to overturned majority decisions with no listed Supreme Court authors (per curiam) and with two dissents leading to overturned majority decisions when Justice Ginsburg authored the Supreme Court majority opinions.  Other 9th Circuit judges help compose the pairs on this chart including Judge Wallace whose dissents led to two overturned majority decisions by Justice Alito.  Like Judge O’Scannlain, Judge Bybee is also paired with Justice Kennedy as two of his dissents have led to Kennedy opinions overturning the lower court majority decisions.

As President Trump continues nominating conservative judges to federal judgeships, the same pattern should continue – specifically with conservative judges’ dissents leading to Supreme Court review. With only part of the Supreme Court’s arguments already set for the term and with only one decision in an orally argued case so far there will likely be several more opportunities to see how these relationships play out before the end of the 2017 term.

Also of note:

Two current Supreme Court justices, while sitting as appeals court judges, were also involved in cases with dissents that led to Supreme Court review.  While sitting on the 3rd Circuit, then Judge Alito dissented in the First Amendment case Beard v. Banks.  Justice Breyer authored the Supreme Court’s majority opinion in this case which followed Judge Alito’s dissent and overturned the 3rd Circuit’s decision.  Even though Justice Ginsburg only affirmed two lower court decisions with dissents since the 2005 term, one of those affirmances came in a case, Empire Healthchoice v. McVeigh, with a majority decision from then Judge Sotomayor while she sat on the Second Circuit. In this case Justice Ginsburg upheld Judge Sotomayor’s decision of how to interpret the forum clause in the Federal Employees Health Benefits Act of 1959.


On Twitter: @AdamSFeldman

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