Today, the Ninth Circuit Court of Appeals joined the more conservative Fourth Circuit Court of Appeals in finding that the Trump administration’s travel ban is unconstitutional because it discriminates categorically against Muslims.
You’ll hear the president and his Fox News surrogates say that the Supreme Court overturns 80% of the Ninth Circuit’s rulings.
Here is why that number is true but also false and misleading.
But let’s start with this analogy. Over the past 30 years, my wife and I have agreed 99% of the time on issues that relate to raising our three children. I can distinctly recall rare occasions—because I am sometimes reminded of them— when my recommendation was “X” and my wife recommended “Y” and my recommendation prevailed, only to be the perfectly wrong approach. The point is that when my wife and I disagree, my failure rate is about 80%.
Does that make my decision rate an 80% failure as a father/husband? Of course not. I am usually right, but my wife is more right than me. My 80% failure rate is that small sliver of cases where we disagree, and my view prevail. Then, my decisions are about 80% wrong.
Turning to President Trump and Fox News, they are referring to Roy E. Hofer’s excellent but flawed research article, “Supreme Court Reversal Rates: Evaluating the Federal Courts of Appeals.” It's here:
https://www.americanbar.org/content/dam/aba/migrated/intelprop/magazine/LandslideJan2010_Hofer.authcheckdam.pdf.
What Trump and Fox won’t tell you if that the Supreme Court’s average reversal rate for all the federal circuits is 68%, according to Hofer's research.
So, let’s stop and consider this: Does this number mean that all the appeals courts are “rogue” or “biased” or incapable of applying the law? No.
What Hofer, and now Trump and Fox, don’t tell you is that the court’s primary jurisdiction is called “certiorari,” a term that means the Court has discretion to fully review a lower court case. In more than 99% of cases that are appealed to the Supreme Court, the Court declines to grant certiorari. Thus, these appeals court rulings are either correct as a matter of law, or not so flawed that the Supreme Court decides to review them.
Now, consider this explanation: “In short, social media claims that 80 percent of cases decided by the Ninth Circuit were overturned were flat out false; more than 99 percent of that circuit’s decisions stood and the Supreme Court reviewed a scant 0.106 percent of circuit court cases each year. Although figures from 2010 maintained the “Ninth Circuit [had] the second highest reversal rate at 80 [percent],” the “highest” was the Federal Circuit court’s median of 83 percent. However, left out of both the rumors and the blog post was the fact that the average rate of accepted cases ruled upon differently by the Supreme Court than a lower circuit court was over 68 percent across all courts.” See here: http://www.snopes.com/ninth-circuit-court-most-overturned/.
Returning to my parenting analogy: Being 80% wrong in a very narrow set of circumstances does not make a parent 80% wrong in his or decisions as a parent. For me, the clear implication is that when my wife and I conflict, I should listen to my wife. However, for the Ninth Circuit—whose rulings are upheld in 99% of Supreme Court decisions— they aren’t one person in conflict with a second person. They make decisions in groups called panels (usually three), and they are often trying to figure out how another group of judges—at least five of them—will rule if their decision is appealed.
I’ll simply say that we’ve raised three good kids notwithstanding my occasional mistakes, and the Ninth Circuit has been in the mainstream of American law in 99% of its rulings.
No comments:
Post a Comment