9th Circuit Thorn in Trump's Side

"Out of control."  "A complete and utter disaster."

                                Donald Trump, on the Ninth Circuit

Donald Trump and Fox News are tweeting and broadcasting an idea that the Ninth Circuit Court of Appeals is a rogue court, filled with biased or incompetent judges.

Trump cites statistics: The Ninth Circuit (representing the western third of the US) has more cases reversed than any other Circuit. About 75% of cases are reversed. Proof positive of failure!

Voters hear this and write this blog. Something must be very wrong to be reversed so often:

"Peter, the 9th Circuit Court has a huge number of cases that get appealed that are in fact overturned! Are these judges lacking in knowledge and understanding of the constitution or are they ruling with significant bias?

What is the truth?

The truth is that the 9th Circuit representing the western US is widely considered a little more  "liberal" on some issues than other Circuits. Similarly, the 5th Circuit representing Texas, Mississippi, and Louisiana is considered the most "conservative," and is being pushed more so on handguns and immigration by new Trump appointments. Click: Texas Tribune.

What is not true is that the 9th Circuit is "rogue," that is is reversed more than other courts, or that most of its decisions are considered "wrong" by the Supreme Court.

Click: Supreme Court

As the Supreme Court explains on their own website, they receive 7,000-8,000 appeals per year, of which they accept about 100 cases, just over 1%. This means that in nearly 99% of all cases the Supreme Court is content to let the Appellate ruling stand. This gives an entirely different picture than the one being presented by Trump and his media allies, that a vast majority of cases are overturned.

The Supreme Court intentionally takes hard, close cases where there is a significant chance of reversal, including cases where various Circuit Courts came to different conclusions. The Supreme Court is there to bring consistency between the Circuits. The fact that Circuit Courts are reversed is not a surprise. It is the expectation. After all, they disagreed on some point.

The 9th Circuit is reversed about as often as the others, with several Circuits being reversed more. The statistics are haphazard because with 13 Circuits (including the DC and Federal Circuits) and only 100 cases a year there are few data points to consider, but the 9th Circuit is exceptional only in there being the largest number of data points, which makes sense given that it represents by far the most population and territory and is by far the busiest.

It is not exceptional for being reversed more often. Seven of the 13 Circuits are reversed about 2/3 to 3/4 of the time, and the 9th Circuit at 79% is third in the percentage of reversals. The most conservative Circuit, the 5th in Dallas, is reversed 66% of the time.

The Ninth Circuit is a thorn in Trump's side not because it is an incompetent court, but because Trump's travel ban and immigration ban decisions were poorly drafted, so he was enjoined twice. On his third try his executive order had removed the clear evidence of racial bias animus and the Supreme Court, in a 5-4 vote, accepted the premise that the travel bans were based on legitimate national security grounds, not the religious and ethnic bias he had stated in public speeches was his actual motivation. 

The issue at point was the narrow one of whether judges should be allowed to use their common sense and the full record of a president's public statements to interpret the purpose of an executive order,  or whether they would be constrained to consider and take at face value only the statements put forth in the sanitized executive order. The newly constituted Court said they can only use the document itself, and must ignore what he said elsewhere.

That brought the result Trump wanted. The thorn was removed. Such are the kinds of decisions that come before the Court.

Politifact has an excellent, readable explanation of the cases the Court considers: Click: Politifact.

Readers who prefer a detailed report by the American Bar Association, with multiple tables that tell the same story: Click: ABA. Lots of charts at the end.

Click: current Newsweek

What is really going on is that Trump wanted a result. Trump is not particularly interested or concerned about institutions or process. Trump is saying publicly that the Courts are a frankly political institution and it is his goal to change the interpretation of the law by changing the political biases of the judges on the courts. It is a winning political strategy within the GOP.  White Evangelical Christians are Trump's strongest support group, and like Trump's promise to change the law one judicial appointment at a time.

Trump's talking point is that the 9th Circuit is incompetent. His real issue is political. He disagrees with some of the decisions the judges have made and is out to change the judges.