Supremes keep smackin' around the Ninth Circuit

Starting with my post 26 in this thread,, we’ve discussed whether or not the U.S. Court of Appeals for the Ninth Circuit (which covers most of the West Coast) is reversed more than other circuit courts.

And now see this, from the Washington Post:

Not a pretty picture, although the last few paragraphs soften the blow a bit.

:: crickets ::

OK, I’ll bite. Two points:

  1. It does not do the cause of constitutionally-protected rights any good, in my opinion, if the 9th circuit is too aggressively liberal about them. Example: Reinhardt believes that the words “under God” in the pledge of allegiance is unconstitutional. To me that is pushing things too far, since the pledge has no official standing (does it?) and is not enforced in any way. If I find myself saying the pledge (which I have not done since high school) I simply omit those two words, as I have done since 7th grade. No-one knows or cares except me.

  2. Did I read this correctly? The supreme court overturns over 70% of the decisions it considers? Does that surprise any of our legal scholars? Is it just because they don’t bother to consider cases where there is no doubt that they would confirm?

That’s not surprising: the Supreme Court only hears a limited number of cases, and the justices vote on which cases they will hear. So, if you’re a justice on the court, and you like the decision of the lower court, you will generally vote against the court hearing an appeal. You would only vote to hear cases where (1) you think the lower court got it wrong, or (2) there are conflicting decisions on a legal issue in different lower courts.

Doesn’t surprise me one bit. For years certain groups such as the ACLU have known that the 9th is their best bet for creating a law that they could never hope to create through a Democratic process. Now, given the makeup of the Supreme Court, there’s no longer clear sailing for those sorts of rulings.

I thought laws were created by the Legislative Branch composed of popularly-elected officials, reviewed for coolness by the Executive Branch, and were only reviewed for constitutionality by the Judical Branch.

Did stuff change since I was in 9th grade?

Maybe the 9th is just trying to attract Obama’s notice for if or when he needs to appoint another Supreme?

The fact that the Supremes and the Ninth disagree so often does not imply that the Ninth is wrong so often.

If you believe the Constitution says whatever the Supreme Court says it does, then yes it does imply that. If you believe the Constitution says what it says, then it implies it too.


You missed the part where judges rulings that I disagree with are Judicial Activism and Legislating from the Bench and Defying the Will of the People (judges rulings I agree with, on the other hand, are Rule of Law because we Live in a Republic not a Democracy.)

It seems you’re having trouble with the difference between “correct” and “authoritative”. Is that it? Can we help explain it to you?

Not everybody’s ready for progress. The most powerful, the most authoritative will always progress last. I would hate to imagine that the court that represents me would be the one the Supremes most disagreed with. That means they’re simply an echo chamber, instead of making progress

When I agree with all the laws in the country, then I’ll wish the 9th and Surpremes agree. Until then, I hope they keep disagreeing

Eventually the old, the racist, the bigoted, and the uneducated will die off and newer, more progressive people will replace them. There will still be bigots, but less of them. And the democratic process has never been the best way to protect minorities. Mob rule and all that.

Well that’s how the creators of the Constitution envisioned it, more or less. But anybody who’s followed the news in recent generations knows that the role taken by the courts in creating laws is quite different from that original vision. Anytime that the courts overrule a law, they must claim that they are merely interpreting the Constitution, but nonetheless in many cases the claims are so far-fetched that most people can’t take them seriously. In addition, in many cases the courts are not overruling laws at all, but instead simply ordering that a bureaucratic decision has to go one way or the other. Thus the courts are making a de facto law ordering bureaucrats to do or not do something.

I wonder also whether your 9th grade class mentioned the concept of case law. If not, then perhaps you should educated yourself further about the lawmaking process rather than merely relying on what you learned in ninth grade.

The biggest deal in this story, i think, is not so much the number of reversals, but the fact that we have a string of reversals in which the Supreme Court’s vote was unanimous. If the Supreme court consistently and unanimously overrules a particular court, that is suggestive, i think, of some fundamental differences in interpretations of constitutional law that go beyond simplistic “liberal/conservative” or “activist/originalist” divisions.

As i noted in the thread linked by the OP, even though the 9th is the most reversed court, it’s not by much, and most of the others are close enough to be within hailing distance. Here’s the aggregate numbers i calculated for the period 2004-2009 inclusive, showing total number of cases, number reversed or vacated, and the percentage:

Circuit	Total R/V	%

1st	13	7	53.85%
2nd	37	26	70.27%
3rd	15	10	66.67%
4th	23	17	73.91%
5th	30	23	76.67%
6th	40	30	75.00%
7th	26	18	69.23%
8th	22	16	72.73%
9th	99	79	79.80%
10th	17	11	64.71%
11th	39	23	58.97%
DC	13	8	61.54%
FC	18	14	77.78%

As you can see, six other circuits have rates over 70 percent. Given the much larger number of cases referred by the 9th, i don’t think the simple number or even the percentage of reversals is a very big deal.

But getting all nine judges to agree seems to me to be a much bigger deal. I don’t have the time right now, but i’d be interested to look at the numbers again while including statistics for the number of lower court rulings that were reversed unanimously. It seems to me, as a matter of basic common sense, that those rulings are probably the ones where the Circuit Court was more clearly overstepping the bounds of reasonable interpretation. There could be things i’m missing, though.

Alright then, since you know exactly what you mean, can you start me out? Give me a couple examples of significant bench legislation. I sort of have a few state-level examples in my mind that are relevant to my particular industry, but they’re weak–basically court rulings on vaguely worded legislation that had a huge impact on how I do stuff at work, but the legislation was in place and the interpretation did not contradict it.

Sorry to say it has.

Cite? Examples? Anything?

The state has an interest in restricting late term abortions, but not first-trimester abortions. To paraphrase George Will regarding the trimester delineation SCOTUS sensed in the Constitution, one wonders how they would have decided if the human gestation period had a prime number of months. Anyway, not trying to start an abortion debate, just pointing out that you will study yourself blind trying to find the “first trimester” clause in the Constitution. Roe v Wade, at that point effectively crafted law, with specific bright lines that SCOTUS generously provided, having discerned them with their Spider-sense. It was a logic so tortuous even pro-choice scholars wince. Ruth Bader Ginsburg isn’t a fan of that ruling, for Pete’s sake.

Or Kelo v. the City of New London, in which SCOTUS determined that the phrase “for public use” actually meant “not necessarily for public use.” Another flouting of a duly ratified piece of legislation.

For living document types, there is no difference.

So no, that’s not it.


One of the Ninth’s greatest hits was a ruling on the Mojave Desert Cross. It went like this. A cross honoring American soldiers in WWI was built. (On private land, with private money.) At a later date, that land was part of a large parcel bought by the Dept. of the Interior. Most people were quite fine with it but the ACLU brought suit on behalf of a government employee who demanded that the monument be destroyed. The Ninth managed to find that the Constitutional demanded its destruction. The Supreme Court then found that the Constitution does not. (After a which a local vandal made his own decision by destroying the cross.)

Of course the Supreme Court itself is often on the wrong side of equally ludicrous cases. For example, why is it illegal for me to grow a single marijuana plant for my own consumption? According to the Supreme Court, in doing so I am practicing “interstate commerce” and thus the federal government may arrest me as part of its power to regulate interstate commerce.