This week’s Wall Street Journal features an editorial discussing the allegedly high reversal rate of the allegedly activist Ninth Circuit Court of Appeals. The article points out that the Supreme Court has reversed or vacated all eight cases that it has heard on appeal from the Ninth Circuit this term. But the methodological flaws in the Journal's analysis are enough to make a good economist blush.
This latest attack on the Ninth Circuit comes as no surprise. As one of the few circuits with a Democratic-appointee majority, the Ninth Circuit is a convenient scapegoat for those who'd like to paint these appointees as liberal judicial activists. The article doesn’t mention that the Ninth Circuit has the largest caseload of any Circuit, and so it is natural that the Supreme Court hears more appeals from that circuit. It also fails to mention that the Supreme Court often takes cases in which it plans to reverse or vacate the appellate court.
Moreover, like other similar criticisms in the past, the editorial failed to compare the Ninth Circuit reversal rate to the rates of other circuits. In the 2005-2006 term, for example, the Ninth Circuit was reversed 83.33%. This reversal rate was lower than those of the First, Third, Seventh and DC Circuits, which all had 100% reversal rates, as well as that of the Second Circuit, which was reversed at a rate of 85.71%. Similarly, in the 2004-2005 term, the Ninth Circuit was reversed 84%, while the First, Second and Tenth Circuits all had 100% reversal rates. The total reversal rate that year was only 73.2%. Without more context and points of comparison, this attempt to pillory the Ninth Circuit for its reversal rate is absurd.
If conservative commentators want to criticize the decisions of an appellate court, they are free to do so; but they should stop misusing data to make their case.