Critics of the 9th
Circuit generally offer two explanations for its frequent reversal:
The court is too large, and it is too liberal.
Both of these explanations are wrong. The 9th Circuit's problem is
neither its size nor its politics. The 9th Circuit's problem is the
Supreme Court, and the speed with which the high court is remaking
much of American law.
...
Unlike the 9th
Circuit, some courts, such as the 4th and 5th Circuits, have
wholeheartedly embraced the strategy of anticipating the high
court's next move. Usually judges who engage in this guessing game
get it right. For instance, in Brzonkala v. Morrison, a panel
of the 4th Circuit refused to follow long-established Supreme Court
precedent and struck down a key provision of the Violence Against
Women Act. The panel rightly guessed that the five-member Supreme
Court majority would seize the opportunity to restrict Congress'
power to regulate activities that it has found to have an effect on
interstate commerce. More rarely, judges guess wrong, as when the
4th Circuit brazenly declared that Miranda v. Arizona was no
longer good law, and the Supreme Court disagreed.
Whether the lower court guesses right or wrong, however, it acts
lawlessly when it disregards existing precedent. Unfortunately,
Chief Justice William Rehnquist has repeatedly lauded the 4th
Circuit as the "best circuit" for doing precisely that.
As the chief justice's praise suggests, the Supreme Court itself
bears a large measure of blame for this practice. It has invited
lower courts to produce circuit splits, thereby blazing a trail for
the high court to follow. Such splits, based less on honest
disagreements over the current law than on headlong efforts to
change it, give the high court a fig leaf to cover its own activism:
The Court can claim that it is merely "resolving" an area
of "unsettled law," rather than admitting that it is
engaged in a wholesale constitutional revolution.
Thus, Yale law professor Akhil Amar was right when he recently told The
New York Times that there is "something screwy" about
the 9th Circuit's high number of Supreme Court reversals,
particularly unanimous reversals. But what is "screwy," is
not that the 9th Circuit is getting the law wrong. It is that the
Rehnquist Court is changing the law so swiftly and on such a broad
range of issues and doctrines that it must reverse a multitude of
decisions faithful to existing law in order to achieve its ends.
Moral Majority
founder and Faith
and Values Coalition national chairman Reverend Jerry Falwell
attempted to dismiss the 9th U.S. Circuit Court of Appeals as part
of "the little noisy, squeaky, left-leaning minority" and
as the prime example of "a runaway federal judiciary,"
falsely claiming that the "23 eggheads out there" on the
9th Circuit "get their rulings overturned almost every
time." Also during his televised December 19 sermon, Falwell
advocated "doing away" with the 9th Circuit; he was
apparently referring
to legislation that the U.S. House of Representatives recently passed
as an amendment to the Bankruptcy Judgeship Act, which would split
the 9th Circuit into three parts.
But according to
Supreme Court litigation firm Goldstein & Howe, only four
circuit courts had a better reversal record in 2003. As this chart
(PDF) details, the 9th Circuit had the fifth-lowest number of
reversals among the nation's thirteen circuit courts. Six of the
thirteen circuit courts -- including the conservative 5th U.S.
Circuit Court of Appeals -- had 100-percent reversal rates.
In a July 3 Sacramento
Bee article, Bee legal affairs writer Claire Cooper
wrote: "The 9th U.S. Circuit Court of Appeals defied its
renegade reputation by having its opinions upheld at a
better-than-average rate during the just-concluded [2003] Supreme
Court term." Cooper also noted that "the results have
changed little in recent years but much since the 1996-97 term. A
record of 17 unanimous reversals and a single close affirmance that
year earned the Western circuit [the 9th Circuit] its reputation as
the nation's 'most reversed.'"
While some of us on the left view
the right as a monolith, the truth is that the right is made up of a
coalition of various groups. Libertarians, big business types,
religious, cultural, and social conservatives, main street business
people, and neo-conservatives all have a seat inside the right’s
tent. Many of those groups have little in common. A poor, rural,
Southern, religious conservative does not exactly run in the same
crowd as a rich, yankee, Wall Street merger and acquisition tycoon.
What holds that coalition together?
Mark Kleiman suggests
one common element of the various groups on the right is that they
support polices that “as a practical matter, increase the share of
the national income going to the top 1% of the distribution and
decrease the shares going to the bottom tenth, bottom quartile, and
(in most cases) bottom half.”
One of Mark’s readers, Steve Teles, is a political scientist at
Brandies. He emails Mark and suggests
a different commonality:
What holds all those folks on the
conservative side together, fundamentally (along with a few
substantive issue) is hatred of liberals. Disgust, on a very deep,
gut level, and a sense that conservatives are marginalized in the
institutions liberals control and a sense that they manipulate
language and procedure to control those institutions and to keep
conservatives out.
One institution that conservatives
claim is dominated by liberalism is the Federal Judiciary. Conservatives
have been complaining for half a century that liberal, activist
judges on the Federal bench are laying waste to the values that
conservatives hold dear.
The specific issues identified by conservatives to support that
position include abortion, rights of criminals, school prayer,
school desegregation and affirmative action.
That argument is as dated as Austin Powers. Each of those decisions
occurred at least a generation
ago. The seminal abortion decision, Roe
v. Wade was decided in 1973. Affirmative action was approved in
the 1978 Bakke
decision.
Miranda
was a 1966 case. Schools were desegregated by the 1955 Brown
vs. Board of Education case. School prayer was addressed in the
1962 case of Engel
v. Vitale.
Does it seem strange that conservatives claim that the current
Federal Judiciary is liberal based on cases from twenty-five to
fifty years ago?
The only recent “liberal” decision extending individual rights
that I can think of off the top of my head is the Lawrence
case overturning the Texas sodomy statute. That case was a 6-3
decision with four of the seven Republican-appointed Justices in the
majority. If Lawrence is to be the example of recent liberal
judicial decisions besieging conservative values, perhaps
conservatives should take it up with the Republican politicians who
appointed those Justices.
The conservative argument that the Federal Judiciary is
controlled by liberals may have been true at one time but is clearly
not the case today. That point can be demonstrated in three
ways. First, the numbers show that it is Republican Presidents,
not Democrats who, by and large, have shaped the current Federal
Judiciary.
Of the nine current members of the Supreme Court, seven were
appointed by Republicans. In the last thirty-five years (since 1969)
there have been thirteen
appointments to the Supreme Court. Republican Presidents have
made eleven of those appointments while Democratic Presidents have
made two.
At the Circuit Court of Appeals level, the pattern remains the
same. Since 1969, Republican Presidents have appointed 211 Judges to
the Circuit Courts. Democrats have appointed 122. Since 1969,
Republican Presidents have appointed 813 trial Judges to the
District Court bench while Democrats have made 508 such
appointments.
If the Federal Judiciary is comprised of a bunch of liberal
activists, it is the GOP who put them there.
The second method of showing that the Federal Judiciary is
not dominated by liberals is to look to policy prescriptions
advocated by conservatives. For instance, Republican tort reform
proposals would funnel much class
action litigation into the Federal courts and to give more power
over such suits to Federal judges. If conservatives really believe
that the Federal courts are infested with liberal, activist judges,
why would they want to provide them with more power and control
rather than less?
Finally, the idea that the Federal courts are a bastion of
liberalism does not comport with my experience. When I was a
defense lawyer representing some of the nation’s largest
companies, I removed state court suits to Federal court whenever
possible. Similarly, when I represent human beings against large
corporations, the defense routinely removes the action to Federal
Court if my complaint permits them to do so. It would be a strange
coincidence if corporate America was seeking a more liberal,
judicially active forum while poor, powerless individuals preferred
the more conservative tribunal.
I have long wondered why conservatives keep making the argument that
the Federal bench consists of a bunch of liberals when it is plain
that it is just not so. Thanks to Steve Teles, I now understand. The
factual basis for such a contention is irrelevant. The fiction that
the Federal courts are a bastion of liberalism is politically
necessary to keep the conservative coalition together. The idea of a
liberal judiciary cuts across the right's coalition and gives shape
and direction to the anger of the various parts of the coalition. It
unites the northern, urban, M&A tycoon with the rural, socially
conservative Southerner.
Regardless of how conservative the Federal courts become,
conservatives will always argue that the courts are liberal because
the argument is politically necessary. The political imperative
trumps the reality.
