Block on Trump's Asylum Ban Upheld by Supreme Court
During his unconventional press conference on Thursday, President Trump described the Ninth Circuit, as "in chaos." It was "a circuit that has been overturned a record number," he said, going on to explain that "this is just a number I heard, that they are overturned 80 percent of the time."
The comments come just days after the Ninth Circuit ruled against the president's travel ban, prompting surrogates to deride the court as "the most overturned court in the country." But that assertion isn't accurate, by many measures. That honor now goes to the Sixth. Not, however, that it matters.
Not the Ninth but the Sixth
A three-judge panel in the Ninth Circuit declined to reinstate Trump's travel ban on the ninth, prompting to president to lash out on Twitter. "See you in court," he said in response to the decision -- in all caps. Later, he called the decision a disgrace, saying that the judges couldn't understand concepts that would be clear to "a bad student in high school."
The president's criticism of the Ninth was echoed by his supporters. Fox's Sean Hannity and Senator Tom Cotton, for example, both declared that the Ninth was the "most-overturned" court.
While the number the president gave during his news conference is right -- the Ninth was reversed by the Supreme Court eight times last term, or 80 percent of the time, according to SCOTUSblog's Circuit Scorecard -- that doesn't put the Ninth in first place. The Eleventh was overturned in every case the Court heard, while state courts were reversed 85 percent of the time. And that's just looking at a single term.
When you zoom out a bit, it turns out that the Sixth Circuit is the Court's most reversed. Yep, this sleepy little appellate court based out of Cincinnati was reversed 81.6 percent of the time since the October 2005 term, the ABA Journal reports. That's 31 reversals out of the 38 Sixth Circuit cases the Supreme Court took up.
But It Doesn't Matter
A circuit court's reversal rate might be an interesting bit of trivia, but its value probably ends there. It doesn't, for example, indicate how "right" or "wrong" the court tends to be in general, nor does it do much to predict how an undecided case may fare before the Supreme Court.
First, when the Supreme Court takes up a case, reversal is the norm. The Supreme Court is a court of discretionary review -- it does not take up cases that it believes were rightly decided. Thus, the Court sides with petitioners about 70 percent of the time. Second, the Court reviews only a tiny handful of decisions made by the Sixth or the Ninth or any other court. Those subsequent reversals are outliers much more than indications of the court's overall performance.
Finally, a circuit's reversal rate shifts dramatically like all statistics (lies, damned lies, and statistics) depending on what one chooses to analyze. Do you look at one term? Ten terms? Do you look at a percentage of reversals per circuit, or reversal as percent of the Court's full docket, or reversal as percent of the cases decided by that circuit altogether? Chose option A and you'll get a much different result than option C.
If there is a valuable reversal stat, it might be the "full reversal rate measure" proposed by Philadelphia lawyers John S. Summers and Michael J. Newman of Hangley Aronchick Segal Pudlin & Schiller. Summers and Newman base their reversal metric on cases where the Supreme Court examines circuit splits.
That analysis can give a more accurate estimate of which circuits are closer to the Supreme Court's thought. Under that method, looking at the past seven terms, the Sixth is only the second most reversed circuit. The first? Yep, it's the Ninth, for what it's worth.