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Ninth Battling to Regain Spot as 'Most Reversed' Circuit

By William Peacock, Esq. | Last updated on

Lets play a word association game. What are the first things you think of when you hear "Ninth Circuit"?

Liberal. Western. Reversals.

The Ninth's reputation precedes it, and with the results of the recent spate of Supreme Court decisions, it may have reclaimed it's title as the most reversed circuit court in America (though the Sixth is certainly putting up a good fight).

In December, the ABA Journal stated that the Sixth Circuit had surpassed the infamous Ninth as the most reversed court, with an 81.6 percent reversal rate since the fall of 2005. The Ninth Circuit, which held the second-place spot, was reversed in "only" 78.1 percent of cases.

Perhaps feeling the heat from their Midwestern rival, the Ninth Circuit has put up a stunning record in the Supreme Court's latest term. Though the Sixth Circuit is sporting a 100 percent reversal rate, that only comes on two decisions, according to the May 31 edition of SCOTUSblog's ever-useful stat pack. The Ninth, meanwhile, has an 86 percent reversal rate on 7 decisions handed down so far in the current term. 

In the ten days since, the Ninth Circuit has twice more been reversed: 

Nevada v. Jackson

Nevada has a rule for evidence of prior unsubstantiated sexual assault allegations. If the defendant wants to introduce such evidence, he must give written notice. Jackson didn't. He wasn't allowed to introduce evidence. The state supreme court upheld his conviction. The Ninth granted habeas relief, applying a balancing test from Michigan v. Lucas (weighs a state's interest in its evidence law versus a defendant's rights). The only problem is, no such test existed:

"The Court did not even suggest, much less hold, that it is unconstitutional to enforce [the written-notice rule] unless a case-by-case balancing of interests weighs in favor of enforcement ... No fair-minded jurist could think that Lucas clearly establishes that the enforcement of the Nevada rule in this case is inconsistent with the Constitution."

Yep. A reversal doesn't get more clear than that.

Horne v. Dep't of Agriculture

Today's reversal came through an odd, and seemingly paradoxical ruling. The Horne family refused to comply with the Department of Agriculture's restrictions on their grape growing, calling it "communism". Once they were finished name-calling, they first argued that they were producers (and therefore exempt from the regulation) and even if they were handlers, the regulation implicated the takings clause.

The Ninth held that the Hornes were handlers, and therefore subject to the regulation. They also ruled that they were producers, and therefore, the Ninth lacked jurisdiction and the takings clause claim belongs in the Court of Federal Claims.

It's a paradox. And in effect, it meant pay the fine here, then re-file in the CFC.

SCOTUS reversed unanimously, and held that the Ninth has jurisdiction, and similarly-situated defendants won't have to venue-hop to assert their constitutional rights.

It'll be interesting to see how the remaining cases fall. The Ninth has three more cases pending, while the Sixth has none. And one of those from then 9th, Perry, is a key decision, to say the least.

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