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.