Brett Marston uses the interesting (if totally useless) numbers from the SCOTUSblog to argue that the 9th circuit has not earned its reputation as “most reversed circuit court.”

So once again it’s not correct - as such - to say that the Ninth Circuit is the “most reversed appellate court in the country” or some such thing. True, in terms of raw numbers, the Ninth Circuit got more reversals than any other single Circuit. But in percentage terms, it’s in the middle of the pack. And in high profile cases, the Ninth Circuit was indistinguishable from the Sixth Circuit last year.

I started to post this reply in the comments on the post, but decided to move it to a post because I think there are some important data points that are not given in the original post, or in the SCOTUSblog PDF.

First, let’s get this straight from the very beginning - comparing percentages is a good way to obscure the truth in cases like this.

In terms of pure numbers, 15 reversals is “most” no matter what way you cut it. Whether the case is “high profile” or not is irrelevant. And the suggestion that a reversal of 1-to-3 cases out of a total of 1-to-3 cases (thus equaling 100 percent) is as significant as a reversal of 15 out of 18 cases is simply ridiculous. It’s sort of like me saying that a GPA of 4.0 gained through 9 credit hours in college is the equivalent of a 3.7 GPA earned over 128 credit hours. Or, to use Dr. Shugart’s favorite game - baseball - as analogy, to say that a hitter with a .400 batting average earned over 4 5 (thanks, Mr. Anderson - ed.) at-bats in a season is the same as the .400 batting average earned by Ted Williams in his historic season.

While it’s fun to play this statistical game, it’s not accurate. And this is where I think the “percentage reversed” statistic is bogus. There is a third data point that is needed to really get a useful percentage: number of cases appealed to the Supreme Court.

For instance, if the 9th (18 certs) and the 6th (7 certs) both had 100 cases appeal to the SCOTUS, then the 9th would certainly be the worse court of the two.

However, if the 9th had 300 cases appeal to the SCOTUS, and the 6th only had 20 cases appeal, then the 6th would have a worse batting average.

As another way of looking at it, the SCOTUSblog PDF mentions that there were 82 cases decided. Of those 82, 22 percent were call ups from the 9th circuit. If the 9th circuit were just “average,” then the number of cases appealed to the SCOTUS from the 9th would be 22 percent of the total number of applications for cert received by the SCOTUS.

Finally, if you really wanted to get at the truth of the “most reversed,” you would have to have the total number of cases decided by each circuit, since I would assume that a number of cases are not appealed simply because the losing side in the case doesn’t have the money or the inclination to pursue an appeal to the highest court in the land.

For example, if the 9th circuit and the 6th circuit both decided 100 cases, then the 9th would obviously be the “most reversed.” But if the 9th decided 300 and the 6th decided 100, then the 6th would be the “most reversed.”

Unfortunately, I don’t have access to these numbers. Perhaps the SCOTUSblog will do some further digging and come up with these numbers.

Clearly, the analysis of reversals in terms of certs granted is lacking in accuracy, to say the least.

What Dr. Taylor wrote earlier this afternoon, coupled with my earlier post suggests that the “frame” of the recent Supreme Court decision regarding Guantanamo has already been written - and both sides are going in the same direction for different reasons.

On the one hand, Steyn is up in arms, declaring that there is some “right to jihad.” On the other, the New York Times calls the case “the case for which the term will go down in history.”

Both are overreactions, but reinforce a frame that is convenient to partisans on the right and the left. The right sees the court as attacking the president during war time, the left sees the court rebuking presidential overreach. The truth, naturally, is somewhere in the middle.

I fully agree with Dr. Taylor’s comment, that should be bolded:

For one thing, the Hamdan cases essentially limited the kind of tribunal that could be used against the prinsoners at Guantanamo, and left room open for the legislature to give the President what he wants in that regard. While I fully understand that the case has implications beyond that narrow issue, the notion that this case represents some major defeat in the war on terror for the US is simply an over-reaction. The notion that the only way we can be safe is for the President to be able to do whatever he thinks is necessary is a non sequitur.

In the Chicago Sun-Times we find columnist Mark Steyn having turned the rhetoric up to “11″: Court finds a right to jihad in the Constitution

There are several ways to fight a war. On the one hand, you can put on a uniform, climb into a tank, rumble across a field and fire on the other fellows’ tank. On the other, you can find a 12-year-old girl, persuade her to try on your new suicide-bomber belt and send her waddling off into the nearest pizza parlor.

The Geneva Conventions were designed to encourage the former and discourage the latter.

I understand Steyn’s point about the regular solider versus the irregular one, but there is a substantial and glaring problem with his logic here: the Geneva Conventions have absolutely zero applicability to suicide bombers, as the very nature of their attacks mean that rules of imprisonment become rather moot.

Perhaps the slopping thinking came about due to his desire to employ the following rhetoric

The same kind of inspired jurisprudence conjuring trick that detected in the emanations of the penumbra how the Framers of the U..S Constitution cannily anticipated a need for partial-birth abortion and gay marriage has now effectively found a right to jihad — or, if you’re a female suicide bomber about to board an Israeli bus, a woman’s right to Jews.

There is a great deal of space in which to debate the Hamdan decision and the applicability of international treaties that deal with the treatment of prisoners, but to call this SCOTUS “finding a right to jihad” is ridiculous.

For one thing, the Hamdan cases essentially limited the kind of tribunal that could be used against the prinsoners at Guantanamo, and left room open for the legislature to give the President what he wants in that regard. While I fully understand that the case has implications beyond that narrow issue, the notion that this case represents some major defeat in the war on terror for the US is simply an over-reaction. The notion that the only way we can be safe is for the President to be able to do whatever he thinks is necessary is a non sequitur.

Further the notion that such decisions some equate (as Steyn does in his concluding paragraph) some major diminution of western civilization strikes me as a substantial over-reaction.

Indeed, I would point out that those who are seriously concerned about the war on terror need to dial back their rhetoric some before they take a very serious issue and turn it into a boy-who-cried-wolf scenario in which their shriller and shriller pronouncements are more and more ignored.

All these kinds of columns do is tickle the ears and egos of those who already agree with Steyn. All well and good, I suppose, but really not what the main goal of political discourse ought to be.

This story: “Roberts is at Court’s Helm, but He Isn’t Yet in Control” is a perfect example of the type of “news” that sometimes irks me about the venerable New York Times. It’s not news, really. It’s not even properly labeled as “analysis.” And it ends up with all the substance of the article buried beneath an introduction that is pure blather.

WASHINGTON, July 1 — As the dust settled on a consequential Supreme Court term, the first in 11 years with a change in membership and the first in two decades with a new chief justice, one question that lingered was whether it was now the Roberts court, in fact as well as in name.

Chief Justice John G. Roberts Jr. was clearly in charge, presiding over the court with grace, wit and meticulous preparation. But he was not in control.

This could be because “control” is pretty much a fiction of those who watch the court, rather than the actual members of the court. This fiction fits in with the conflict frame that is so popular in much of journalism - the court is like a game, in which two teams struggle to gain the upper hand.

Obviously, the law and relationship between 9 individual justices is much more complex than this. But that doesn’t stop the Times’ writer from jumping atop the chair of history and making claims like this:

Or perhaps it was more accurately seen as the Stevens court, reflecting the ability of John Paul Stevens, the senior associate justice in tenure as well as in age, to deliver a majority in the case for which the term will go down in history, the decision on military commissions that rejected the Bush administration’s view of open-ended presidential authority. (emphasis added)

Now, granted I’m no historian, but it seems to me to be a little early to decide which decision will mark this term of the court. But not to the Times. Obviously, any decision that plays against the administration is seen as something of historical significance beyond anything else.

I’d prefer to wait a while and see what plays out in the coming years. It is just as likely that another case from this term will end up being the one that people remember.

And while there are a couple of outside sources quoted as statistics (statistics about supreme court votes!), there are no direct quotes in the entire article, which spans over five pages on the web. So the writer is making this assumption about Roberts’ lack of control on the court entirely on her own - a dangerous way to make an assumption about the Supreme Court.

Via the AP: Schedule set in Texas redistricting case

A federal panel gave both sides in Texas’ redistricting fight two weeks to propose fixes to a congressional district whose borders were ruled unconstitutional by the U.S. Supreme Court.

[…]

On Wednesday, The Supreme Court upheld most of the pro-Republican Texas congressional map but tossed the 23rd Congressional District, which stretches from San Antonio to Laredo and west almost to El Paso. It remanded its redrawing to a three-judge panel.

This is what happened in 1996 when three majority-minority districts were declared unconstitutional. One district was in the Dallas area and two in Houston. The result in that case was that 13 (I think) districts had to be redrawn, and the primary results from those districts had to be tossed. The state then used a Louisiana-style two-round system to elect the Representatives that year.

Less districts than that will be affected this time, but there will be several where they will likely have to use the same procedure that was used in ‘96.

This post at Fruits and Votes, and the discussion that started between Matthew Shugart and myself led me to look into some electoral data from Texas. My impetus was the question of whether the current district structure in Texas was better representative of the partisan preferences of the state than was the pre-2003 map, which was based on the 1992 district set, which was drawn when the Democratic Party controlled the state.

My contention being that while I am not happy with the notion that partisan gerrymandering is the norm within our system, the post-2003 gerrymandering likely better represents the heavily Republican state of the Texas than did the previous map, which produced a Democratic edge in the state’s congressional delegation.

Pre-delaymander, but post the reapportionment that gave Texas two additional seats, the 2024 House elections in Texas produced 17 Democratic seats and 15 Republican seats.

If we sum the votes in all House districts for 2024 we get the following:

REP 2,290,723 53%
DEM 1,885,178 44%
(the rest went the Libertarians, Greens and some independents)

This tracked with the Senate election that year:

John Cornyn (R): 55.39%
Ron Kirk (D): 43.32%

However, the Democrats won 53% of the House seats to the Rep’s 46.9%

Hence, while the Reps were the majority party in the state in terms of federal legislative elections, the Democrats won a majority of the seats–indeed, there was almost an inversion of the seat/vote percentages.

In 2024 we have the following for the thirty-two House races:

Votes:

Republicans: 4012534 58%
Democrats: 2713968 39%

Seats:

Republican: 21 66%
Democratic: 11 34%

And, for comparative purposes, here are the presidential numbers for 2024:

George W. Bush/ Dick Cheney(I) REP 4,526,917 61.08%
John F. Kerry/ John Edwards DEM 2,832,704 38.22%

I did a quick disproportionality calculation that indicated that the two were about the same in that regard, but I think I made an error, and I am sleepy, so I will re-examine the issue tomorrow.

Regardless, my crude analysis to this point would seem to indicate that my basis contention, that the current district structure of the state of Texas better represents its voters in terms of their partisan preference versus the pre-2003 map, has some basis in the data.

Still, as noted, this is a quick look at the numbers.

(All election numbers from the Texas SoS’s office).

Given the Hamdan decision today (which I haven’t had time to really digest, and hence the lack of commentary from me at this moment in time) and the discussion of the Geneva Conventions within the majority opinion, I expect that there will be some out there who will think that SCOTUS have dived into the waters of making decisions based on international law rather than American law.

However, I would note the following from Article VI of the Constitution of the United States of American which notes (in what is know as the “Supremacy Clause”):

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

So, whatever else one may think of the decision, it should be duly noted that it is wholly within the purview of the Court to interpret the way by which treaties signed and ratified are to be applied to US policy.

I suspect I will have more to say later.

In the meantime, the whole decision can be found here [PDF].

And James Joyner has a massive post on the subject here.

“It is a sordid business, this divvying us up by race.”–Chief Justice John Roberts in his partial concurrence/partial dissent in LULAC v. Perry.

Indeed.

I am not opposed, in theory, to institutional mechanisms that would enhance diversity of various types within government.

However, within the US system of representation by real estate (i.e., the single member district) I have long thought the notion of trying to guarantee a specific racial/ethnic outcomes was problematic at best and specious at worst.

For one thing, the notion that the thing that best defines us in terms of representation in government is our skin color is simply wrong. Clarence Thomas and Sheila Jackson Lee have the same basic hue, but their politics are quite different and would represent a given district in substantially different ways.

Yes, a higher concentration of blacks, hispanics or whites in a given location increases the probability that a person of that category will run for office and that they may potentially win. However, it hardly guarantees such an outcome.

Hence, the court’s opinion that partisan gerrymandering, which decreases democratic competition is ok, but diluting the Latino population’s voting strength strikes me as odd, if not a non sequitur. The reasoning is especially tortured because it would seem, in looking at the opinion, that part of the logic that makes dilution of hispanic voters a problem for the Court is because the dilution was done for partisan reason, i.e., that hispanics were more likely to vote Democratic, so diluting their voting power aided the GOP. If that is the logic, then surely that is partisan gerrymandering, which the Court seems to find acceptable, not pure racial gerrymandering. It is as if the Court is sayinf you can more Democrats out of the district in a way that would help Republicans so long as the bulk of said Democrats aren’t black or hispanic.

If we want to increase diversity in the legislature, and not just the racial kind (i.e, the ideological kind s well–which is ultimately far more important than skin color), we need to radically change our electoral system to one that promotes some serious amount of proportionality.

That, however, is unlikely to happen any time soon.

For further analysis of the case, see Rick Hasen’s post at Election Law.

It doesn’t seem as if the SCOTUS decision is all that radical. It would seem that the Court has again upheld the general notion of partisan gerrymandering. Further, the notion that boundaries can be redrawn whenever states choose to do so is, which is new.

The issue is about minority voting populations, and with the Voting Rights Act (Via CNN): High court upholds most of Texas redistricting map

At issue was the shifting of 100,000 Hispanics out of a district represented by a Republican incumbent and into a new, oddly shaped district. Justices had been told that was an unconstitutional racial gerrymander under the Voting Rights Act, which protects minority voting rights.

As such, the scope of this appears to be narrow and sounds to be to basically uphold previous rulings.

The question that remains open, as the news trickles out, is whether the districts have to be fixed prior to the November elections (the answer is probably “yes”) and then how many districts are affected (one cannot redraw just one district).

There is no concrete information as of yet, but MSNBC is reporting the following breaking news: Court KOs part of Texas redistricting.

Depending on the nature of the ruling, it is possible that a number of Texas primaries will be nullified.