High court has eye on 9th Circuit


From prisoners’ rights to environmental protection, laws set by the West’s powerful appeals court were overturned in 15 of the 16 cases reviewed this term by the U.S. Supreme Court.

The reversals affect a broad range of civil rights and business practices challenged in the nine states and two Pacific territories covered by the U.S. 9th Circuit Court of Appeals. The justices shot down four rulings seen as protecting nature against industrial hazards and five cases asserting claims by convicts that their rights were abused.

Judicial analysts attribute the high reversal rate at least partly to the 9th Circuit’s reputation as a liberal-dominated bench, even though more recent conservative appointments have diluted that influence. Experts, including former law clerks, say the Supreme Court justices are more inclined to look over the shoulders of the 9th Circuit judges they suspect of favoring the underdog.


The high court historically reverses the majority of all cases it reviews -- 76% so far this term, with three decisions still pending. Legal analysts say that’s because they seek to correct what they see as erroneous interpretations by lower courts or to settle conflicting views among the circuits about a law’s meaning.

“Pretty much all courts have a generally high reversal rate before the Supreme Court,” said Adam Samaha, a constitutional law professor at the University of Chicago. “The justices have a practice of taking a case for purposes of changing what happened below.”


Long-running trend

But the 9th Circuit’s record this term, with 94% of its cases reversed at least in part, extends a long-running trend of being disproportionately overturned. The 9th Circuit -- the only one in which a majority of judges were appointed by Democratic presidents -- has had a larger-than-average share of its cases overturned in eight of the last 10 years.

“It’s true that the 9th Circuit is slightly more liberal, generally speaking, than the Supreme Court, and that probably accounts for the more frequent reversal rate the 9th Circuit has,” said Jeffrey L. Fisher, who teaches at Stanford Law School. But he attributes the appeals court’s dominance of the high court docket to the unique issues emanating from the diverse region it covers.

“A lot of important policy cases involving interesting and difficult questions come out of the 9th Circuit. The West is known for its experimentation, the initiative process -- things that bring constitutional questions to the fore more often,” Fisher said.

He argued before the high court this term for a Washington state prisoner who contended that illegal jury instructions led to his murder conviction. The case was one of the 13 from the 9th Circuit fully reversed by the justices.


The sole 9th Circuit case affirmed in full, involving an Oregon boy with learning disabilities, held that parents don’t have to send their special education students to public schools before seeking reimbursement for private-school tuition.

Students’ rights also were at issue in one of the two cases affirmed in part and reversed in part, the strip search of a 13-year-old Arizona girl by school authorities that the justices ruled was an unconstitutional intrusion. However, they overturned the circuit’s ruling that school officials, who were searching for drugs, could be held liable for violating the girl’s constitutional protection against unreasonable search and seizure.

Most analysts dismiss statistics on reversal as of little significance, given the small number of cases reviewed from most circuits. The 6th and 8th circuits, which together cover 11 states from Tennessee to the Dakotas, saw 100% of their cases reversed this term. The 11-state region accounted for only nine cases on the high court’s 83-case docket.

Even with the 9th Circuit’s larger sample size, it is hard to read much into its variance with the overall reversal rate, said David Hoffman, a Temple University law professor.

“Because the circuit is large, it produces a lot of cutting-edge law, due to industries concentrated in the circuit and the large variation of underlying states and state criminal laws,” Hoffman said.


Close scrutiny

But Samaha, a former law clerk for Justice John Paul Stevens, said it was common knowledge that decisions made by panels including certain liberal judges get closer scrutiny than others.


“Is it really a circuit being profiled, in a sense, or really a smaller set of judges who set off alarm bells?” Samaha said. “I would suspect it’s the latter.”

Suspicions fell on the liberal stalwarts Stephen Reinhardt and Harry Pregerson, but the appointees of President Jimmy Carter sat on only a couple of the three-judge panels in the reviewed cases.

Arthur Hellman, a University of Pittsburgh law professor who closely tracks the federal judiciary, sees the justices weighing in more with the 9th Circuit in an attempt to balance what they see as its tendency to rule for the poor and powerless.

“It’s a very skewed group of cases that the Supreme Court takes, not a random selection of 9th Circuit cases,” Hellman said. “They are basically cases in which what one would call the liberal side has prevailed. That’s not accidental.”

In all five criminal cases, the high court reversed the 9th Circuit’s rulings that found in favor of the convicts. That included an Alaska case in which a convicted rapist was denied the right to test the DNA from crime samples against his own, and at his own expense.

The justices also show keen interest in 9th Circuit rulings that favor environmentalists, the law scholars noted. The reversals allowed the U.S. Navy to resume sonar testing off the Southern California coast despite alleged harm to marine life and significantly reduced the amount owed by Shell Oil Co. in the cleanup of a hazardous waste storage site in Arvin, Calif.


Whether the judges take a lesson from the reversals “varies judge by judge, but I think in general we try to be in accordance with the precedents established by the Supreme Court,” said Judge Diarmuid F. O’Scannlain, the 9th Circuit’s longest-serving conservative after Chief Judge Alex Kozinski.

“I don’t think any judge likes to get reversed, so presumably they take a message.”