Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Someone mentioned the comments on Glib's thread about the 9th Circuit remanding the millennium bomber case back to the district court for resentencing. I hadn't bothered to look at the comments, but sure enough, there are some highly amusing whoppers in there. Like this comment from Mack:
During the 2003-2004 term, the Supreme Court reversed 76 percent of the cases that it chose to hear from appeals of 9th Circuit decisions, and your telling us not to question their decisions? Your (sic) a complete and utter fool or a (sic) ACLU member which adds up to the same, your kind of liberal thinking that people should except (sic) all court decisions without question will be the death of America, and we're not going to let that happen, sell your crap to the kos kids.
Is there anything funnier than someone who has no idea what they're talking about getting all cocky and haughty about something? It has become a mantra for the right that the 9th Circuit is so crazy liberal that the Supreme Court constantly overturns their cases; this is absolutely false. Here's a chart of the 9th circuit's reversal rate from 1992 to 2004. That 2003-2004 term where they were overturned 76% of the time? The national average was 77%. The term before that, the 9th circuit was overturned 75% of the time; the national average was 73%. The term before that, it was 76% to 75%.
And of course, some of those cases that were overturned were actually conservative rulings that were overturned. The 9th circuit includes conservative judges as well as liberal ones and sometimes their rulings are overturned too. As I said in my previous post, this isn't thinking, it's non-thinking. It's a convenient shortcut to avoid thinking: 9th circuit = liberal = I don't have to actually analyze and criticize a ruling from there that I don't like, I can just say the word "liberal" and I've defeated their reasoning.
Then the same halfwit comes back later and says this:
All I'm saying is why do people hold judges up as a gods, are you saying they don't make mistakes?
Apparently it hadn't occured to him that the judges about whom he is complaining (without a single substantive argument made, of course) were, in the course of doing exactly what he's complaining about, were reversing a decision of another judge. Is Mack saying that the district court judge could not have made a mistake? He hasn't offered a single argument, nor has anyone in that thread, that the appeals court ruling was incorrect. I swear, all these guys together must share one brain. And not a very good one.
Comments
I don't know, Ed. I haven't done any sort of statistical analysis, but the chart as a whole looks as if there is a significant -- not overwhelming, but significant -- disproportion between the reversal rate of the Ninth Circuit and that of the circuits collectively.
Posted by: CThomas | January 17, 2007 4:30 PM
Mack's comment was sic, sic, sic!
Posted by: Ron Tolle | January 17, 2007 4:50 PM
CThomas, I don't see anything satistical significant. Remember the SC will not take the case unless at least one of the judges think there was something wrong, so a high reversal rate is to be expected. The SC rejects most appeals, thus agrssing with the lower court. I suggest you go to the Good Math, Bad Math site and read the post on satitics.
Posted by: Tulle | January 17, 2007 5:12 PM
Sorry but one more thing. What would be interesting is to see the number of case taken from each circuit each year. That is the real test. It would give an idea of how wrong the SC thought the rulings were.
Posted by: Tulle | January 17, 2007 5:14 PM
While we're spending time with old friends, whatever happenned to gribbit? I haven;t heard anything from him in a long time.
As for Mack, the 9th Circuit and the guy he's arguing with are librels, and that's all that matters.
Posted by: kehrsam | January 17, 2007 5:43 PM
Sorry but one more thing. What would be interesting is to see the number of case taken from each circuit each year. That is the real test. It would give an idea of how wrong the SC thought the rulings were.
You'd also have to weight it against the actual size of the circuit court and the number of cases it sees each year. If SC is taking, say, 40% of it's cases from the 9th but the 9th represents 45% of the total circuit case load -- or if the 9th covers 42% of the US as a whole....
Statistics and comparisons are tricky things.
Posted by: Morat20 | January 17, 2007 5:59 PM
The 9th circuit is by far the largest judicial circuit, so large that there have been proposals for years to split it into at least two pieces. Naturally, more of their cases are taken than any other circuit as a result.
Posted by: Ed Brayton | January 17, 2007 6:47 PM
"the SC will not take the case unless at least one of the judges think there was something wrong." This is not right. Most often, the SC takes a case when a designated number of justices -- not just one -- decide to take the case. Sometimes this means that the "quorum" thinks the lower court decision "may" be wrong. But in these kinds of cases, it frequently happens that the court ends up affirming, and even some of the justices who voted to take the case find that their initial instincts are mistaken and they end up voting to affirm, too. Sometimes the Supremes take a case because they think there there's a particularly interesting or important question of law that needs to be decided, or, similarly, if several lower courts have interpreted some particular law inconsistently and they perceive a need to settle the question. (There are also rare instances when the SC takes a case because it is required to.)
Posted by: Jeff Chamberlain | January 17, 2007 11:19 PM
This wingnut also seems to be crediting the Supreme Court with making the right decisions in reversing the so-called crazy liberal 9th -- a bizarre suggestion coming from the "strict constructionist" right, given the right wing creed of contempt for the 'judicial activism' of the Supreme Court.
Posted by: Dr X | January 17, 2007 11:23 PM
CThomas is actually right. The statistical comparison does show significant independence in the two data sets (I compared the national percentages to the 9th percentages):
The left column = national avg, the right column = 9th circuit
n = 12
AVG 65.1% 78.2%
STDEV 0.0816 0.0849
CONF(90%) 0.0607 0.0632
National: 0.651 +/- 0.061
90% confidence interval range of 71.2% to 59.0%
9th Circuit: 0.782 +/- 0.063
90% confidence interval range of 84.5% to 71.9%
Pretty significant. Not a huge difference, but my worksheet includes t-tests and chi-tests. If you want the Excel worksheet, see here.
Posted by: Daniel Morgan | January 18, 2007 6:46 AM
The US SupCt takes up a case if four justices believe it should be taken up. It takes four of the nine justices to agree to a writ of certiorari.
The reasons why cases are taken by the US SupCt are shrouded in mystery, but the most significant reason proffered by law profs is that they will take an appeal when there is a conflict among circuits (courts of appeal) and/or state supreme courts on the legal doctrine that is to be applied in a case that turns on federal law. The US SupCt is, of course, the final arbiter on the legal doctrine that is to be applied. (One might quibble whether the US SupCt's decision on the matter is necessarily correct--and they have overruled themselves in more than a few cases--but that's another issue.) If the US SupCt overturns decisions by the 9th circuit in an inordinate number, it may be largely because they use decisions from that court to resolve a "conflict among circuits," which conflict may be among a number of circuits, not just the 9th vs. everyone else. But a reversal of the decision of the 9th, even if other circuits agree with the 9th, will be reflected as a reversal only of the 9th, not the decisions of other circuits.
This whole "9th circuit is reversed more often than others" is something of a red herring, in large part because it ignores a number of variables, including, but not limited to, the number of decisions and orders issued by the 9th circuit (which, as was mentioned above, is the largest circuit, in land mass, population covered and number of judges), the percentage of those decisions and orders that are appealed to the US SupCt, and the percentage of appeals that are taken up by the US SupCt, all in relation to the same variables for the other circuits.
Let's understand something. This whole mantra from the Mighty Righties that the "9th circuit is reversed more than other circuits" is nothing more than an extension of their epithet San Francisco liberal (the 9th Circuit court is seated in San Francisco, although it hears appeals in other cities). When you recognize that, their whole game becomes clear.
Posted by: raj | January 18, 2007 8:32 AM
For the people who are saying 'But it looks significant to me', let me draw your eyes to what you're seeing: the difference between the Bush years and the Clinton years. Before 2000, the numbers jump all over, but it is very common that the 9th circuit's higher than average. Okay. Great. Post 2000? 2000-2001 is only 8% different, and beyond that they're within a percent or two. So, during the time period where the 'liberal activist judges' are defying the 'conservative will of America'... there's no difference in the rates.
The time when they're different is _pre_ 2000, when, you know, the entire Supreme Court and most of the judiciary is supposedly filled with them liberal judges. The... same time when the cases overturned was larger for the 9th circuit than any other in what others are calling a statistically significant manner.
If you were making stupid baseless assumptions based on this magical view of liberal activist judges... either the judicial liberal conspiracy disagrees with itself a lot, or the 9th circuit, by the same incredibly faulty attempt at logic being applied to call them liberal incompetents now, were _accurately_ conservative incompetents in the 90's. (Heck, if you want to be more selective and loose with the math, the divergence only really seemed to start around the Republican revolution of 1994. Not a strong basis for that, though. And, as people have intimated, there's no 'percentage of cases taken' analysis, or anything, to provide further insight.)
The argument from statistics that they're incompetent liberals all sounds like garbage to me. Especially nowadays and in the generally argued time period.
-Mecha
Posted by: Mecha | January 18, 2007 9:24 AM
Mack seemed to be set off by what is a pretty reasonable comment (and one which, under other circumstances, the STACLU crowd, with their attitude to "activist judges" should be in agreememnt with.)
Of course, Mack doesn't respond to the arguments made against him (except, where as part of a long and detailed post, one commenter points out the appalling grammar and spelling) other than to toss insults around.
Posted by: G. Shelley | January 18, 2007 11:12 AM
Mecha -- President Bush's first nominee to the Ninth Circuit was not confirmed until July 2002. President Bush named no Supreme Court justices until 2005. The pre- and post-2000 breakdown is therefore not a meaningful one. I don't believe that anybody on either side of the "judicial activism" debate would expect a significant and immediate difference in the degree of judicial activism (to the extent it existed before) starting at the time President Bush assumed office.
Regards.
Posted by: CThomas | January 18, 2007 2:25 PM
You've missed my point in the sarcasm, CThomas. Look at the statistics. Modern day (past 4 years): Very in line with the normal reversal rate. Longer time ago: Not so much.
To walk you through the reasoning chain: If one were to argue their incompetence, as is being done by some parties, using real statistics such as these, they would have to ask, 'If reversal is a valid measure of incompetence/liberal activism/what-have-you, (IE: reversal->incompetence and a show of why judges R SO RONG SO OFTEN), why weren't they clearly incompetent in the 90's? Why aren't they using 90's statistics which, you have pointed out, are statistically different (maybe because people would respond, 'That's 10+ years ago!' much like I am doing.) How is it that they became incompetent only in the last few years (when 'judicial activism' has become a more common bogeyman of the right) when their reversal rate was _not_ significantly different from the normal reversal rate, and _worse in the past_?' Answer? The argument that Glib was making is crap.
Seems fairly clear to me, through this line of reasoning, that the statistical significance you point out (over 10+ years) has nothing to do with the use and abuse of those statistics by the people in question. In fact, the statistical significance you point out, again, supports the idea that the 'modern' justices are more in line with the Supremes than the 90's justices were, whether that means competence gained, experience gained, a shifting of the political landscape, new judges, a shifting of laws, whatever. The numbers blow a wide open hole in the concept that the 9th Circuit is somehow more liberal _due to these statistics_, or more incompetent, etc, etc. It's a clear false appeal to math.
As Ed started this thread with: The arguments being used by Glib and others are clearly false. I argue, and point out, that you bringing up the statistical differences in the 90's does not make them less false in any way. If anything, it makes them seem more false, as it shows what real 'proof' of what their ideas would look like, and it looks nothing like the present day data. So... yeah. Not sure why you brought it up, unless you do think that the 90's data supports Glib, and if it did, why didn't you say so?
-Mecha
Posted by: Mecha | January 18, 2007 2:53 PM