Inconsistency is hallmark of 9th Circuit Appeals Court rulings

Tucson, Arizona Sunday, 30 June 2002
http://www.azstarnet.com/star/today/20630NALLEGIANCE-CO.html


By Adam Liptak
THE NEW YORK TIMES

Over the last 20 years, the 9th U.S. Circuit Court of Appeals has developed a reputation for being wrong more often than any other federal appeals court.

In recent years, in cases involving medical marijuana, assisted suicide, disabilities and more mundane issues, dozens of the court's decisions have been reversed unanimously by the Supreme Court.

"In the 1996 term, for example, the 9th Circuit was reversed in at least 24 cases - a staggering number - and at least 16 of them were 9-0 reversals," Akhil Amar, a law professor at Yale, wrote in an online commentary. "When you're not picking up the votes of anyone on the court, something is screwy."

The 9th Circuit may be facing yet another reversal. On Wednesday, it touched off an avalanche of criticism by pronouncing the Pledge of Allegiance unconstitutional.

While the court is famously liberal, critics attribute its record in the Supreme Court more to its unwieldy size than to ideology.

It is by far the largest federal appeals court. At full strength, it has 28 judges, almost twice as many as the next biggest circuit. Its decisions affect a fifth of the nation's population and a third of its land, in nine states and two territories.

Size gives rise to confusion

Of the court's 23 active judges, 17 were appointed by Democratic presidents. That makes it "vastly more liberal than most other courts of appeals, and certainly the Supreme Court," said Eugene Volokh, a law professor at UCLA.

But Mark A. Perry, an appellate lawyer in Washington who was a clerk for a 9th Circuit judge, said ideology does not account for the court's track record.

"Size gives rise to conflict and confusion," he said. "There is no consistency."

Richard A. Posner, a federal appeals court judge in Chicago, devoted a law review article to proving statistically that the 9th Circuit's size predisposes it to "judicial irresponsibility."

The court's size has led to periodic calls for dividing it. In 1997, Congress created a commission to consider the issue. Its chairman was Byron R. White, who had retired from the Supreme Court a few years before.

The records of the White Commission include frank discussions by Supreme Court and 9th Circuit judges of the court's shortcomings.

For instance, judges on the court said they did not have time to read all of the decisions it issued.

According to the commission's 1998 report, 57 percent of judges in the 9th Circuit, compared with 86 percent of federal appeals court judges elsewhere, said they read most or all of their court's decisions.

"The 9th Circuit issues too many decisions for anyone to read," wrote Judge Andrew J. Kleinfeld, who was appointed by the first President George Bush. "Judges on the same court should read each other's decisions. We are so big that we cannot and do not."

"Put bluntly," wrote Judge Diarmuid F. O'Scannlain, who was appointed by President Ronald Reagan, "it becomes difficult to know what our circuit's law is."

Separate divisions considered

The court's chief judge, Mary M. Schroeder, who was appointed by President Jimmy Carter, defended it in an interview. "We have evaluated, and we have studied," she said, "and we have not been able to document issues that are directly attributable to the size of the court."

In his study, Posner considered how often the Supreme Court had reversed the 9th Circuit in a way that suggested simple error by the lower court, as opposed to a principled disagreement on a knotty legal question.

Sometimes the Supreme Court reverses lower courts summarily.

This means, Posner wrote, that the lower court "got the issue so clearly wrong that there is no need for the illumination of the issues that briefing and argument would afford."

Other times, the Supreme Court reverses unanimously. That means, Posner wrote, that the decision was "more likely to be just plain incorrect, rather than being merely the reflection of political difference."

By both measures, the 9th Circuit was wrong more often than any other circuit in the dozen years Posner surveyed, though 1997.

Posner concluded that "problems of quality control indeed increase with the size of the circuit."

The White Commission recommended that the 9th Circuit be divided into largely autonomous divisions. Legislation along those lines was proposed but not adopted.

The 9th Circuit covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, along with Guam and the Northern Mariana Islands.

The judges have chambers throughout the circuit and meet only rarely. Assuming 28 judges, there are more than 3,000 possible combinations of three-judge panels. But the active judges rely heavily on more than 20 senior judges, and panels often also contain visiting judges.

Critics say the 9th Circuit's procedure for full-court review accounts for much of the reversal rate. All other circuits sit as one to hear full-court, or en banc, cases. The 9th Circuit sits in panels of 11.

Full-court hearings increase

The procedure injects randomness into decisions. If a case is decided 6-5, there is no reason to think it represents the views of the majority of the court's 23 active members.

"If you run a judicial process as a crap shoot," Kleinfeld wrote, "the crap shooter's principles will affect the outcomes."

In 1998, Justice Sandra Day O'Connor complained that the 9th Circuit did not use even this flawed procedure enough. She wrote that the court had heard only eight of 4,481 cases en banc in the previous year. In that time, the Supreme Court addressed 45 cases from the 9th Circuit.

That has since changed.

"The 9th Circuit is now more likely to grant en banc review than any other circuit," said Tracey George, a law professor at Northwestern University.

Reinhardt said this has not improved its reversal record.

"Justice O'Connor said we should go en banc more," he said, "and then they give us higher reversal rates on en banc decisions."

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