Does the 9th Circuit Have the Highest Reversal Rate in the Country?

Well, first of all, it is clearly the case that there are a lot of bad opinions that come out of the 9th Circuit. That’s why they get turned over at a rate higher than any other circuit in the nation, and it’s legitimate to talk about that.

— Sen. Ben Sasse, R-Neb., in an interview on “Fox News Sunday”

Asked about President Donald Trump’s clash last week with Chief Justice John G. Roberts Jr. over the independence of the federal judiciary, Sasse agreed with the chief justice that judges should not be categorized as partisans. But he argued that Trump had a point in criticizing the 9th U.S. Circuit Court of Appeals.

The claim that the 9th Circuit holds the record for the highest percentage of cases reversed — repeated by Trump as well as several conservative pundits — is wrong by one metric but correct by another.

In the 2017 term, the Supreme Court heard 14 cases from the 9th Circuit, reversing or vacating 12. That is a rate of nearly 86 percent, which is lower than the 100 percent rates of the 1st, 3rd and 6th Circuits. In the 2016 term, the 9th Circuit’s rate was nearly 88 percent, still behind the 100 percent reversal or vacating rates of four other circuit courts.

From 2006 to 2015, the Supreme Court heard 160 cases from the 9th Circuit, reversing 106 decisions and vacating 24, according to a law journal article by Judge Timothy B. Dyk of the United States Court of Appeals for the Federal Circuit. That is a reversal or vacating rate of about 81 percent, which is higher than the average reversal rate of nearly 73 percent. But the highest rate belongs to the 6th Circuit, with nearly 84 percent.

An older data set shows that the Supreme Court reversed or vacated 80 percent of cases it heard from the 9th Circuit from 1999 to 2008, behind the Federal Circuit’s rate of 83.3 percent.

It is important to note that the Supreme Court takes only a tiny fraction of the cases from lower courts, usually 100 to 150 per term, and reverses most cases it hears. So reversal percentages are not particularly meaningful. A circuit court may have 100 percent of its cases before the Supreme Court overturned because the Supreme Court decided to hear only one or two.

A spokesman for Sasse pointed to a separate analysis from Brian T. Fitzpatrick, a law professor at Vanderbilt University, that instead looks at how often a circuit court’s decision was reversed for every 1,000 cases it terminated from 1994 to 2015. By this metric, the 9th Circuit does come out on top, with 2.5 cases per 1,000. The next-highest rate is from the 6th Circuit, at 1.7 cases per 1,000.