Has the 9th Circuit Court been overturned 80% of the time?

Question

This claim is being made in some parts of the media:

The 9th Circuit Court has been overturned 80% of the time.

Similar versions abound. Here is another one

Why? Because the “reversal rate” of the 9th Circuit is hovering at a solid 80 percent.

What does that mean? It means that this court is filled to the brim with individuals who have no regard for the constitution and who look to further an agenda that suits their personal politics — also known as “activist judges.”

This is in the context of their ruling against the Trump administration in relation to his executive order banning immigrants from 7 countries.

Is this true?

Answer 1

Summary

It depends on your interpretation of the claim.

• Were 80% of all 9th Circuit Court decisions overturned? NO, not even close.

• Were 80% of the small minority of 9th Circuit Court decisions that made it to review by the Supreme Court overturned? Yes.

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Only 0.12% of cases ruled on by the 9th circuit were overturned. 99.85% of cases were not heard by the Supreme Court. 0.03% of cases were confirmed by the Supreme Court.

In the remaining 99.88% of cases, the Supreme Court either wasn't brought in, chose not to take the case or approved of the 9th circuit's rulings.

This is from the data found by DavePhD. The total number of cases decided by the 9th circuit court of appeals was 114,199. Of that number, 107 were reversed, 33 were vacated, and 35 affirmed by the Supreme Court.

A total of 0.15% of 9th circuit cases were heard by the Supreme Court

Of those cases, 80% were overturned (reversed or vacated). This is the "Reversal Rate" and is the number they are using. The quote omits the fact that the "Reversal Rate", as understood by lawyers, does not include cases that weren't reviewed by the Supreme Court.

Cases referred to the Supreme Court are not a random sample of cases decided. They are selected by one of the parties to the case (usually the loser) because that party believes that there is an error of law in the decision and are willing to spend a great deal of money to have that perceived error verified. As such, cases referred to the Supreme Court are preferentially the ones most likely to contain a reviewable error of law and therefore be overturned.

Nevertheless, with data from Brythan (see their excellent answer), the Supreme Court sees approximately 7,000-8,000 petitions for writs of certiorari each term, only 80 of which they agree to take. Assuming the larger number for simplicity, that means 1% of cases requested for review are reviewed. Given that court reviewed 175 cases in the given time frame for the given court, we can extrapolate an approximate 17,500 cases were requested for review within those parameters.

This would give an approximate breakdown of 84.7% of cases weren't even considered by the Supreme Court, 15.1% of cases were declined by the Supreme Court, 0.12% of cases were overturned, and 0.03% of cases were confirmed.

Therefore, the biggest deciding factor from a purely statistical point of view, is "Will the Supreme Court hear the case"? 99% odds they won't, even with a petition. If you hit that 1% odds, then you have 80% odds of the case being overturned. Of course, there's actually an 84.7% chance you won't even seek the Supreme Court. But these numbers assume a randomly selected case, or that the decisions in a future case will be randomly made according to the past-performance statistics.

The case in question isn't going to be decided by statistics, but by judges making non-random decisions. The chances of the Supreme Court taking the case, and in fact whether they would overturn the decision of the lower court, cannot be determined by the past performance of all cases. The particulars of the case have a significant impact on the outcome, and neither the original articles, nor the statistics given here, take the particulars into account.

In short, they've taken a number that applies to a very small sliver of data and claimed it applies to all the data.

They've built an argument around that small sliver in order to make a claim that applies to the entirety of the 9th circuit. Sometimes they acknowledge that the data only applies to a subset, but they fail to clarify just how minuscule that subset is.

This is a common fallacy called the Statistics of Small Numbers fallacy or the Hasty Generalization fallacy, and also shows Selection Bias.

Answer 2

According to the American Bar Association article Supreme Court Reversal Rates: Evaluating the Federal Courts of Appeals:

The reversal rates in Figure 2 range between 55% and 84%. Interestingly, this comparison of reversal rates reveals that the Federal Circuit has the highest reversal rate at about 83.33%, and the Ninth Circuit has the second highest reversal rate at 80%. The Seventh Circuit has the lowest reversal rate at 55.26%. The median reversal rate is 68.29%.

The American Bar Association is defining "reversal rate" as (decisions reversed or vacated by the Supreme Court)/(decisions reversed, vacated, or affirmed by the Supreme Court).

In the time period of the bar association study (1999-2008), 114,199 cases were decided by the 9th circuit and 107 were reversed 33 vacated and 35 affirmed by the Supreme Court.

80% reversal rate does not mean that 80% of all the 9th circuit's decisions are reversed. For only about 1% of decisions is review by the Supreme Court requested by one of the parties, and of that 1% only a small fraction are heard by the Supreme Court.

For more recent information:

Percent reversed for the 9th circuit:

2015 80%

2014 63%

2013 92%

2012 86%

2011 71%

2010 79%

2009 73%

Answer 3

The original question title asked:

Are 80% of Ninth Circuit judgements overturned by the Supreme Court?

No. Asked like that, the rate is between .1% and .2%.

The quoted claim is

The 9th Circuit Court has been overturned 80% of the time.

Which would be better stated as: of the cases from the 9th Circuit that have been reviewed by the Supreme Court, 80% are overturned. This is misleading in that many people will hear the first claim. The wording is overly ambiguous.

As @DavePhD posted the "overturn" rate statistic of 80% is correct. The problem is that not all cases are reviewed. So there might be a 114,199 cases, 175 are reviewed, and 140 are overturned. 140 is 80% of 175, but it is far less than 1% of the overall cases. That rate is between .1% and .2%.

USCourts.gov says:

In fact, the Court accepts 100-150 of the more than 7,000 cases that it is asked to review each year.

Obviously 150/7500 is only 2%. 80% of that would only be 1.6%. And of course, not every case is brought to the Supreme Court for Review. Numbers just for illustration -- the actual rate may differ somewhat.

The Supreme Court says:

The Court receives approximately 7,000-8,000 petitions for a writ of certiorari each Term. The Court grants and hears oral argument in about 80 cases.

It's not clear why the difference in numbers between the two sources. Regardless, the point is that the court does not hear most of the cases where review is requested, much less most of the cases issued by the circuits.

Note that in the context of the travel pause stay, it's not as misleading as it first seems. While only a small percentage of the overall judgments are overturned, a high percentage of those requiring review are overturned. This will almost certainly require review, as there is a conflict in the district courts of different circuits. A court in Seattle issued the stay while a court in Boston ruled the actions constitutional. The only way to resolve conflicts in different circuits is for the national court to rule. The Supreme Court is the national court. The term is circuit split.

The locution used in the quotes is skipping a step. In a random case, it's a big step. In this particular case, not quite as big. But 80% is still a high estimate at this point in the process.

As a side note, one of the reasons why the 9th Circuit has a high overturn rate is that it is too large for en banc review to proceed easily. So more litigants try to get a Supreme Court review without the step of en banc review. The 9th might have better statistics if it overturned some of its three judge panels itself, like the other circuits do. There have been some recent reforms that may help with that going forward, but that's unlikely to affect this particular case.

Answer 4

Yes. The cited claims are correct but the simplified/paraphrased post title is incorrect.

Both cited articles do qualify their respective "80% overturned" statements.

The first notes(with my emphasis):

If Trump brings makes his plea to the Supreme Court — with Justice Neil Gorsuch onboard — the “rogue” 9th Circuit decision will be overturned easily.

The second, quoting National Review, states:

The Ninth Circuit’s best showing in recent years was October Term 2009, with a 60 percent reversal rate in the 15 cases on which certiorari was granted.

I agree that someone not reading beyond the headlines might come to the mistaken conclusion that 80% of all of the 9th Circuit's decisions have been overturned, but we do not do that here, right?