9th Circuit in the SC

Interesting article about the domination of the Supreme Court docket by the Ninth Circuit, pointing out (as many have) that the reversal rate is not higher than average:

Ninth Circuit appeals accounted for about one-third of the Supreme Court's docket in the term that ended Tuesday -- 25 of 78 cases. Hellman said about one-sixth of petitions for certiorari were from the 9th Circuit, meaning that the Supreme Court is "taking cases from the 9th Circuit at a much higher rate than you would expect."

Legal scholars offer a handful of explanations for the circuit's increasing domination of the high court docket, which they noticed a few years ago. One reason may be that the West is a cultural and economic powerhouse, a place where novel legal issues are simply more likely to come up.

"If an issue is not happening somewhere on the West Coast, it's probably not a significant issue," said Hastings College of the Law professor Vikram Amar.

Besides that, there's also the microscope factor.

"You have to wonder whether the [Supreme Court] law clerks don't take a special look at 9th cases," said Hellman, who closely follows the 9th Circuit. It's like "a self-reinforcing phenomenon because they've taken so many in the past that it becomes the focus of attention," he speculated.

Amar pointed out that nearly half the Supreme Court has personal ties to California and the West: Chief Justice William Rehnquist and Justice Sandra Day O'Connor both attended Stanford Law School and then worked in Arizona. Justice Anthony Kennedy was born in Sacramento and sat on the 9th Circuit, and Justice Stephen Breyer was born in San Francisco.

But as the article notes, the Ninth Circuit is likely no longer the black sheep it was in recent years:

The tarring came just a few years ago when the circuit was viewed as being dangerously out of step with the rest of the country. Unhappy with what the circuit was doing, U.S. Supreme Court justices sent a strong message, Goldstein said, by reversing circuit cases and making comments at judicial conferences and in other speeches and writings.

"What the Supreme Court was really doing was encouraging the 9th Circuit to police itself," Goldstein said.

The 9th Circuit is apparently taking that message to heart. Goldstein pointed to the litigation last fall over the recall, where a three-judge panel halted the election -- a move many believed would benefit embattled Democratic Gov. Gray Davis.

But the court immediately reconsidered the case en banc and issued a unanimous ruling in Southwest Voter Registration Education Project v. Shelley, 03 C.D.O.S. 8617. Arnold Schwarzenegger won the election by a comfortable margin.

Interesting stuff.