Supreme Court overturning numerous 9th U.S. Circuit Court of Appeals rulings

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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 range of civil rights and business practices challenged in the nine states and two Pacific territories that comprise the 9th U.S. 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 inclined to look over the shoulders of the 9th Circuit judges they suspect of favoring the underdog.

The Supreme Court historically reverses the majority of all cases it reviews -- 76 percent so far this term, with three decisions pending. Legal analysts say that's because they seek to correct what they see as erroneous interpretations by lower courts or to settle conflicting views among the circuits about a law's meaning.

"Pretty much all courts have a generally high reversal rate before the Supreme Court," said Adam Samaha, a constitutional law professor at the University of Chicago. "The justices have a practice of taking a case for purposes of changing what happened below."

But the 9th Circuit's record this term, with 94 percent of its cases reversed at least in part, extends a long-running trend of being disproportionately overturned. The appeals court -- the only one where a majority of judges were appointed by Democratic presidents -- has had a larger-than-average share of its cases overturned in eight of the past 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 Supreme Court docket to the specific 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," Mr. Fisher said.

He argued before the Supreme Court this term for a Washington state prisoner contending 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.

The sole 9th Circuit case affirmed in full, involving an Oregon boy with learning disabilities, held that parents don't have to send their special-education students to public schools before seeking reimbursement for private-school tuition.

Most analysts dismiss statistics on reversal as of little significance, given the small number of cases reviewed from most circuits. The 6th and 8th Circuits, which together comprise 11 states from Tennessee to the Dakotas, saw 100 percent of their cases reversed this term, respectively five and four of the Supreme Court's 83-case docket.

But Mr. Samaha, a former law clerk for Justice John Paul Stevens, said it was common knowledge that decisions made by panels that include certain liberal judges get closer scrutiny than others.

"Is it really a circuit being profiled, in a sense, or really a smaller set of judges who set off alarm bells?" Mr. Samaha pondered. "I would suspect it's the latter."

Suspicions fell on liberal stalwarts Stephen Reinhardt and Harry Pregerson, but the appointees of President Jimmy Carter sat on only a couple of the three-judge panels in the reviewed cases.

Arthur Hellman, a University of Pittsburgh law professor who tracks the federal judiciary, sees the justices weighing in more with the 9th Circuit in an attempt to balance what they see as its tendency to rule for poor and powerless people.

"It's a very skewed group of cases that the Supreme Court takes, not a random selection of 9th Circuit cases," Mr. Hellman said.

"They are basically cases in which what one would call the liberal side has prevailed. That's not accidental."


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