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U.S. Supreme Court Looks Over 9th Circuit's Shoulder

Publication Date: 
June 29, 2009
Los Angeles Times
Carol J. Williams

Professor Jeffrey L. Fisher is quoted in the Los Angeles Times in a story about the high number of cases from the United States Court of Appeals for the Ninth Circuit that were overturned by the Supreme Court of the United States:

From prisoners' rights to environmental protection, laws set by the West's powerful appeals court were overturned in 15 of the 16 cases reviewed this term by the U.S. Supreme Court.

The reversals affect a broad range of civil rights and business practices challenged in the nine states and two Pacific territories covered by the U.S. 9th Circuit Court of Appeals. The justices shot down four rulings seen as protecting nature against industrial hazards and five cases asserting claims by convicts that their rights were abused.

Judicial analysts attribute the high reversal rate at least partly to the 9th Circuit's reputation as a liberal-dominated bench, even though more recent conservative appointments have diluted that influence. Experts, including former law clerks, say the Supreme Court justices are more inclined to look over the shoulders of the 9th Circuit judges they suspect of favoring the underdog.


But the 9th Circuit's record this term, with 94% of its cases reversed at least in part, extends a long-running trend of being disproportionately overturned. The 9th Circuit -- the only one in which a majority of judges were appointed by Democratic presidents -- has had a larger-than-average share of its cases overturned in eight of the last 10 years.

"It's true that the 9th Circuit is slightly more liberal, generally speaking, than the Supreme Court, and that probably accounts for the more frequent reversal rate the 9th Circuit has," said Jeffrey L. Fisher, who teaches at Stanford Law School. But he attributes the appeals court's dominance of the high court docket to the unique issues emanating from the diverse region it covers.

"A lot of important policy cases involving interesting and difficult questions come out of the 9th Circuit. The West is known for its experimentation, the initiative process -- things that bring constitutional questions to the fore more often," Fisher said.

He argued before the high court this term for a Washington state prisoner who contended that illegal jury instructions led to his murder conviction. The case was one of the 13 from the 9th Circuit fully reversed by the justices.