Hi folks. Let me preface this with: I am absofuckinglutely not a lawyer in any way, shape, or form, and you should check my sources at the bottom as well as other sources.
Especially in the wake of this week’s ruling but also previously from the GOP I keep seeing a talking point about the Ninth Circuit having an “incredible reversal rate of 80% becuz liberal” and I’d like to address it a little.
Are most Ninth Circuit justices democrats? It’s a possibility. In this particular case (Washington/Minnesota v. Trump et. al.) the liberal argument lacks any sort of substance, given that it was a per curiam ruling – a very specific ruling that only occurs when every judge on the panel reaches a unanimous decision. Richard Clifton, a Bush II appointee, is a noted conservative and, if you listened to the oral arguments, pressed Washington state pretty damn hard. Even he found the DOJ position thoroughly lacking. Put frankly, DAG August Flentje’s arguments were ludicrous to begin with and resulted in a bipartisan ruling against an overreaching executive.
As to the 9th circuit record: that 80% figure isn’t nearly as remarkable as people upset with them keep trying to portray it to be. As of 2010 the Federal Circuit has a higher rate at 83%, and the mean overturn rate across all circuits is over 68%. As of 2014 SCOTUS was reversing 70.5% of lower court rulings. The Ninth Circuit reversal rate was 79.5%. The Ninth Circuit also makes up for a disproportionate amount of cases referred to SCOTUS at nearly 26%. Between 2010 and 2014, the Eighth Circuit had a reversal rate of 87.5% and the Sixth at 87%, though they accounted for 8 and 23 cases respectively. The Eleventh Circuit scored 81% reversals.
An overturn rate isn’t evidence of political bias or rift but a reflection that one set of judges disagreed with the way another set of judges interpreted the case and applicable law – largely about commercial, not constitutional, issues. POM Wonderful LLC v. Coca-Cola is a great example – heard by appointees of Reagan, Bush II, and Carter – it was reversed, but SCOTUS also rejected the DOJ view. But it’s hardly evidence of ideology, unless you feel strongly about pomegranates. In the 2010-2014 period the Federal Circuit had a reversal of 66% but those particularly consisted of SCOTUS overturning Federal patent rulings.