Politifact fact-check: the Ninth Circuit is, in fact, the most reversed federal court of appeals

Recently, cable news personality Sean Hannity commented that the Ninth Circuit is the "most overturned court in the country." Politifact rated that claim as "false." But Politifact's analysis is seriously flawed and suffers from selective analysis of the evidence, and misrepresentation of the evidence in other respects.

I recently had the opportunity to appear on NPR's AirTalk to support a proposal from Arizona Senator Jeff Flake's office to split up the United States court of Appeals for the Ninth Circuit. The "Judicial Administration and Improvement Act of 2017" would keep California, Oregon, Hawaii, and some U.S. territories in the Ninth Circuit. It would create a new Twelfth Circuit out of Arizona, Nevada, Montana, Idaho, Washington, and Alaska.

One reason for splitting the circuit is systemic dysfunction in the Ninth Circuit. It has 29 active judges, (but four vacancies at the moment) nearly the size of the 30-member Arizona Senate (to speak on terms for those from the Grand Canyon State). That's nearly twice as large as the 17-member Fifth Circuit. It's little wonder that decisions take longer (often much longer) to issue from the Ninth than anywhere else. Splitting the circuit would help create a new "Mountain Circuit" that would function fairly effectively, and the new Ninth Circuit would remain the largest circuit in the country.

More judges might help the Ninth speed along cases, but it would not help its high reversal rate. That's because the court lacks the ability to self-correct with true en banc procedures; the entire 29-member court can't really assemble, and it's left instead to a lottery of some subset of these judges to correct errors from three-judge panels. And in a lottery of three judges among 29, some combinations are sure to be greater outliers than others. Splitting the circuit would allow it to have true en banc procedures and minimize reversal rates.

The Ninth Circuit's legacy is cemented by instances like October Term 1996, when it went 1-for-28, the stuff of legend. The Ninth Circuit is reversed more often perhaps because its size accounts for poorer outcomes.

So, to Mr. Hannity's claim that the Ninth Circuit is the "most reversed." While there are arguments raised in the Politifact piece that "most reversed" may have limited normative significance, that's a separate argument. (But, Politifact can't help itself to weigh in on the normative claim, concluding, "More broadly, experts say this statistic is a poor way of comparing courts.") Instead, as a matter of pure math, is the Ninth Circuit the "most reversed"?

Politifact says no. The answer is resoundingly yes.

Politifact chooses a cohort of data from 2010 to 2015 to conclude that the Ninth Circuit is the third-most reversed, behind the Sixth and Eleventh Circuits. But why pick this window of time?

I used the same analysis with slightly different data--Politifact uses the SCOTUSBlog Stat Pack, which is slightly simpler and less comprehensive in time than the Harvard Law Review statistics, which I opted to use (and may result in some slight variations of the numbers). Because of changes to the Harvard Law Review statistics system, I also didn't have ready access to Eleventh Circuit data between OT1994 and OT1996.

The chart below displays the cumulative reversal rate, which includes opinions from the Supreme Court that reverse a court, vacate an opinion from a court, or reverse in part or vacate in part. It is the cumulative reversal rate based on the term listed: so, for instance, OT2014 data is the cumulative reversal rate for OT2014 & OT2015; OT2013 is the cumulative reversal rate for OT2013, OT2014, and OT2015. I ran the figures for the Sixth, Ninth, and Eleventh Circuits.

It would be hard for Politifact to manufacture a window that more perfectly enables it to refuse Mr. Hannity's claim. If you begin to include any earlier terms, the Eleventh Circuit quickly falls behind the Ninth in reversal rates; by including a 12-year window back to OT2004, the Ninth Circuit is the most reversed, and holds that trend back through cumulative data to at least OT1994.

Now, there are, of course, many ways to slice such data. Is the Ninth Circuit relatively better than it has been? (Answer: yes, but not by much--its cumulative reversal rate since OT2012 was around 80%, not much better than the rate of around 82% since OT1994). Is the Ninth Circuit not as bad as other circuits in recent years? (Answer: yes, but only with a fairly limited window of time.)

But for Politifact to so brazenly rate Mr. Hannity's claim as "false" displays its choice to evaluate his claim through a single and precise window--perhaps to achieve a result that the fact-checker desired to reach.

Below are charts for the 9th Circuit and 6th Circuit reversal rates dating back to OT1994.

9th Circuit rev/vacate total rev rate
OT1994 14 17 82%
OT1995 11 13 85%
OT1996 27 28 96%
OT1997 14 17 82%
OT1998 14 18 78%
OT1999 9 10 90%
OT2000 13 17 76%
OT2001 14 18 78%
OT2002 18 23 78%
OT2003 19 25 76%
OT2004 16 19 84%
OT2005 15 18 83%
OT2006 19 21 90%
OT2007 8 10 80%
OT2008 15 16 94%
OT2009 11 15 73%
OT2010 19 24 79%
OT2011 18 24 75%
OT2012 12 14 86%
OT2013 10 11 91%
OT2014 10 15 67%
OT2015 8 10 80%
Total 314 383 82%
6th Circuit rev/vacate total rev rate
OT1994 4 7 57%
OT1995 2 4 50%
OT1996 2 3 67%
OT1997 3 3 100%
OT1998 2 4 50%
OT1999 3 4 75%
OT2000 5 7 71%
OT2001 9 10 90%
OT2002 5 7 71%
OT2003 6 8 75%
OT2004 7 11 64%
OT2005 6 8 75%
OT2006 4 7 57%
OT2007 2 3 67%
OT2008 5 5 100%
OT2009 7 7 100%
OT2010 5 6 83%
OT2011 5 5 100%
OT2012 2 2 100%
OT2013 9 11 82%
OT2014 4 5 80%
OT2015 3 4 75%
Total 100 131 76%

Additionally,  and inexplicably, the Politifact analysis includes this absurd claim:

We also found that the 9th Circuit never had the highest reversal rate in any individual term between 2004-15. (That’s the farthest back we could go.)

Just as it would be wrong to look at the total number of reversals--the Ninth Circuit is the largest circuit, and we would expect it to have the most raw reversals (and the most raw affirmed opinions) over a period of years, such as 314 reversals in a little over 20 years, which dwarfs all others--it would be just foolish to look at a single year's data for which circuit had the highest reversal rate. While it sounds impressive that the Ninth Circuit was "never" the "highest" in a single year for 12 years, Politifact's own reporting in this same piece explains why a single year's data is a silly metric:

In 2014, for instance, the 2nd Circuit had a reversal rate of 100 percent, which sounds pretty bad until you find out that the Supreme Court only heard one case from the 2nd Circuit that entire season.

There are plenty of years where a single circuit's record is 0-1, or 0-2, giving it a 100% reversal rate; meanwhile, the Ninth Circuit, with an appeals load of at least 10, and often more than 15 cases, it almost assuredly guaranteed at least one decision affirming what the court did.

Politifact's fact-check, then, is false.

It's worth emphasizing that what bearing this particular claim has on the merits of a decision to split the Ninth Circuit into smaller courts is a different matter. There are many good reasons for dividing the Ninth Circuit up, which I discussed in my AirTalk interview, and which Mr. Flake's offices will surely raise to his constituents.

On the precise point raised by Mr. Hannity, however, he is, at least in some measure, quite right--the Ninth Circuit is, in recent history, the most reversed federal court of appeals.

Please notify me of any errors in the data!

The #Calexit ballot proposal is unserious in a number of ways

I had perhaps foolishly entertained the notion that the #Calexit "independent California" movement might be a serious attempt to declare independence from the United States, and I described the hurdles facing a prospective ballot measure. I've now read the actual proposal, and it's entirely unserious, in a number of different ways, worth noting now that the proposal has been approved for circulation. I would read the text of the proposal first, which is shockingly minimalist. It does two things: amends the California Constitution to eliminate the provisions that California is "inseparable" from the United States and that the Constitution is the "supreme law of the land"; and calls for a "plebiscite questions" in 2019 on independence, which, if favorable, would require the governor to apply to the United Nations.

There a lot--a lot--of problems with this proposal. To name a few:

First, the initiative repeals the constitutional provision that "The state of California is an inseparable part of the United States of America, and the United States Constitution is the supreme law of the law." Never mind the dozens of other places in the California Constitution that refer to the United States of America or the United States Constitution--for instance, requiring state legislators to be citizens of the United States (Article IV, section 2) and the Governor (Article 5, section 2).

Second, the initiative makes no attempt to call for a constitutional convention, which would be necessary for this and other reasons--for instance, no need to elect United States presidential electors, senators, and representatives.

These problems alone indicate that #CalExit is not a serious independence proposal. Proponents claim this would be a "first step," but it is hardly any step at all--except, I suppose, an opportunity for earned media to treat the movement seriously despite the lack of legal impact of the movement.

Third, the initiative provides, via statute, for a "plebiscite question" given to the voters with the condition that at least 50% of registered voters participate for it to pass. California Constitution Article II, Section 10(a) provides no minimum participatory threshold for an initiative to take effect.

Fourth, the initiative provides, via statute, for a "plebiscite question" given to the voters with the condition that at least 55% vote "Yes." California Constitution Article II, Section 10(a) requires only a "majority" to pass initiative statutes.

Fifth, ballot initiatives are now to occur on the first Tuesday following the first Monday in even-numbered years, Cal. Election Code 9016. The initiative provides for elections in March of odd-numbered years and does not amend or refer to 9016 to account for this change. (Indeed, the California legislature recently amended this provision to ensure that major initiatives and referenda would occur in instances with higher voter turnout, March of odd-numbered years being among the lowest of turnout.)

Sixth, the "plebiscite questions" likely exceeds the power of the people of California to behave via initiative. California courts regularly conclude that the initiative power, even under "the most liberal interpretation," limit the power to the adoption and rejection of "statutes." Such conclusions come from AFL v. Eu and many California state appellate rulings. Declaring that the governor must behave in a certain way--that is, petitioning the United Nations for statehood--is not really a legislative enactment embraced by statute.

Seventh, and relatedly, the people of California may lack the power to direct the Governor to do something. For instance, in Widders v. Furchtenicht (2008), a California appellate court concluded that the initiative power was inappropriate to direct the city council to exercise its "informed judgment" in promulgating laws about housing and retail stores.

It's possible that some would consider the amendment to be a "revision" of the state's constitution, but I highly doubt that removing some largely precatory language--part of which is already redundant of the federal Constitution, anyway--amounts to a revision.

It's also worth noting these problems are not necessarily fatal to the measure appearing on the ballot. California courts in particular are reluctant to engage in pre-enforcement challenges on the merits of a proposed initiative, in the hopes that such questions might be mooted if the initiative fails to get enough signatures or fails at the ballot box.

Some of the problems outlined above might be cured with statutory construction that would give effect to the challenged provisions. Others might simply be notes about the limited nature of this question left for subsequent legal amendments. But they are, I think, serious reasons why the #Calexit proposal is decided unserious.

Tribe, Chemerinsky explain why their own Emoluments Clause lawsuit against Trump should be dismissed

I don't have terribly strong thoughts on the Foreign Emoluments Clause. I don't have strong thoughts on whether the Clause applies to the President (but I left open the possibility in an article I published in 2015). If the Clause does apply to the President, I don't have strong thoughts on what an "emolument" might include. And I certainly don't have strong thoughts on whether Donald Trump's business activity, as a matter of fact, is prohibited under the Clause.

But after learning that a lawsuit was poised to be filed by "a team of prominent constitutional law scholars," alleging that Mr. Trump is in violation of the Clause, my first question was: do these scholars have standing to bring such a claim?

In order to answer my question, I thought I'd check to see what these scholars had to say--at least, what they had to say before November 8, 2016.

The plaintiff in this case is a group called the Citizens for Responsibility and Ethics in Washington ("CREW"). Before a plaintiff can bring a claim, it's pretty basic Federal Courts stuff to note that the plaintiff must have standing to bring the lawsuit. That includes a particularized injury. A "generalized grievance" is not enough--that's something appropriate for resolution in Congress, not the courts.

While litigation under the Foreign Emoluments Clause is pretty rare, we at least have some good precedent under the Legislative Emoluments Clause to inform what constitutes a "generalized grievance."

Erwin Chemerinsky, the dean of the University of California-Irvine, is representing the plaintiff. Here's what he described about standing under the Legislative Emoluments Clause in his Federal Jurisdiction treatise:

Laurence Tribe, a Harvard professor, is another attorney representing the plaintiff. Here's his description in the third edition of his treatise on Constitutional Law:

There are many ways that the Foreign Emoluments Clause might be enforced. One obvious path would be impeachment, if Congress found that Mr. Trump was in violation. Another, as Andy Grewal has suggested, might creatively occur in a judicial setting after Mr. Trump leaves office.

But these hornbook examples from Professors Chemerinsky and Tribe demonstrate the high likelihood that this case will be dismissed. Simply put, there's nothing that distinguishes CREW from an ordinary citizen--there's no particularized injury, and their injury is simply a generalized grievance that the public at large shares. The resolution for such a dispute, then, does not lie with the judiciary.

UPDATE: Josh Blackman has more here.

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My favorite Excess of Democracy posts from 2016

What I enjoy writing here at Excess of Democracy does not always correlate with what others enjoy reading. I'll soon post my year-end report with the most popular posts, but I thought I'd offer a few of my favorite posts from Excess of Democracy in 2016, as I did in 2015. (For my academic work, my SSRN page is a good place to start--articles were published in the Florida State University Law Review, the Arizona Law Review, the Fordham Law Review, the Harvard Journal of Law & Public Policy, the Ohio State Law Journal Furthermore, and the George Washington Law Review On the Docket. Any my favorite content published elsewhere--Wall Street Journal opinion pieces on the third-party ballot and campaign finance outcomes, and faithless electors; a Washington Post piece on the Electoral College; a St. Louis Post-Dispatch piece on Judge Raymond W. Gruender, for whom I clerked; and a piece at the Online Library of Law and Liberty about campaign finance law--are also not listed below. A more complete list can be found on my CV.)

Status of "natural born citizen" challenges and litigation in 2016 presidential election (Feb. 9, 2016)

Legal employment outcomes in California, DC-Maryland-Virginia, New York, Ohio, Texas, and Florida in 2015 (Apr. 2016)

Visualizing federal judicial clerkship placement, 2013-2015 (May 2, 2016)

Jefferson v. Hamilton and House of Representatives v. Burwell (May 12, 2016)

The twenty-two (or twenty-three) law reviews you should follow on Twitter (July 5, 2016)

Why is the ABA still accrediting law schools? (Oct. 28, 2016)

The collapse of bar pass rates in California (Dec. 14, 2016)

Electoral College posts (miscellaneous topic)

Fictional Attorney of the Month: Frank Galvin

Frank Galvin is a miserable and unhappy attorney in The Verdict. Played by Paul Newman, his personal life and his professional life have fallen apart. But in a beautiful film directed by Sidney Lumet and written by David Mamet, Galvin finds redemption in, of all things, a medical malpractice case.

Galvin is tempted to take a large settlement but rejects it in pursuit of the chance to do something right. The case goes to trial, where the evidence is on Galvin's side, but, as with all trials, things never go smoothly in the courtroom.

Galvin's restoration through the film, culminating before the jury during closing argument, are good enough to make him the Fictional Attorney of the Month.

2016 Fictional Attorneys of the Month

January: Mitch Grinder

February: Troy

March: Herr Huld

April: J.J. Ford

May: Paul Biegler

June: The Blue-Haired Lawyer

July: Mr. Briggs

August: Sally Carrera

September: Abraham Haphazard

October: Jackie Chiles

November: Fred Gailey

2015 Fictional Attorneys of the Month

2014 Fictional Attorneys of the Month

2013 Fictional Attorneys of the Month

After blogging about more than forty fictional attorneys on a monthly basis, I've decided to put FAotM on hiatus indefinitely. It was a delightful effort for many years. But there's a grind to a monthly format, and I've been a bit picky in my selection of lawyers, which dramatically reduces the pool of opportunities to blog and makes next year's efforts fairly daunting. There are, of course, many, many more fictional attorneys out there, and perhaps I'll launch back into the project sometime in the future. But for now, a chapter is closing.

In today's WSJ: "Faithless Electors: Now It’s Up to Congress"

In today's Wall Street Journal, I have an opinion piece entitled, "Faithless Electors: Now It's Up to Congress." It begins:

The 538 members of the Electoral College convened Monday and cast a majority of their votes for Donald Trump for president and Mike Pence for vice president. When Congress convenes on Jan. 6 to count the votes, it will mostly be a formality. But its decision to count or exclude the votes of some “faithless electors” will set a precedent for future elections.

And it concludes:

These are challenging questions that cannot be answered by a judge or a court. Only Congress decides what to count. And while it won’t change the outcome of this election, its decisions will affect how states handle faithless electors in the 2020 election and beyond.

California's move to a two-day bar exam might affect some schools more than others

I was among the first to discuss California's planned move from a three-day bar exam to a two-day bar exam. The first two-day exam will occur in the July 2017 administration.

The old three-day model weighted the Multistate Bar Exam component (the 6-hour multiple choice test) at about 1/3 of the overall score, and the other two days of essays as about 2/3 of the overall score. When the bar studied the issues, it found little difference in assessing aptitute or in scoring between a 1/3-2/3 model and a two-day bar where both sections would be weighted roughly equally (as most states do).

That's true at the macro level. For individual test-takers, of course, that can vary wildly. And even at the school level, we may see somewhat noticeable differences between the MBE scores and the essay scores.

Thanks to a pretty sizeable disclosure from the California bar, we can assess how individual schools fared on the bar, and what their scores would look like if scored under the July 2017 1/2-1/2 model.

This, of course, has many limitations, which I'll start listing here. First, these are the mean scores; they correlate highly with pass rates, but not perfectly. Note that Stanford's mean score blows all other schools out of the water, but its first-time pass rate is only a few percentage points better than others. That means movement up or down in the mean scores would likely improve or worsen the pass rate, but in measures not immediately ascertainable. Second, just because the bar was scored this way in July 2016 does not mean we would expect graduates of these schools to perform similarly in 2017. Indeed, evidence like this would probably drive a change in bar study habits! Graduates would be inclined to focus more attention on the MBE and less attention on the essays, which would change the scores in unknown ways.

The chart at the right shows in red circles what schools' mean scores were this July under the 1/3-2/3 scoring model. The blue circles are what the scores would have been under the 1/2-1/2 model. (Recall that a passing score in California is a 1440.) As you can see, there is almost no difference for most schools. I flagged four schools that might see the biggest changes--San Diego's for the better; and Irvine, San Francisco, and Thomas Jefferson for the worse.

And recall the caveats above--this does not mean it will translate into demonstrable differences in the pass rate, and pass performance is not an indicator of future success. This is particularly school for the three schools I identified that might expect lower means--Irvine is well above the passing score, and San Francisco and Thomas Jefferson are well below it, meaning marginal differences in the mean score would probably affect very few. (For schools closer to the 1440 score, we might expect slightly larger differences, again with the significant caveats listed above about the limited value of using the means.) But it should certainly shift attention in graduate preparation next summer--and whether that changes scores remains to be seen.