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Go figure. After years of browbeating by the U.S. Supreme Court, the 9th U.S. Circuit Court of Appeals fared well with the justices this year, as nine cases were reversed out of just 10 heard. Despite the 90 percent reversal rate, court watchers pointed out that the Supreme Court was picking up 9th Circuit cases at a rate far below the circuit’s share of the federal caseload. And certainly, the court took fewer of the circuit’s cases than in years past. A year ago, the Supremes took 18 9th Circuit cases and reversed 14. The year before, the court took 17 and reversed 13. “That, in some ways, is the more significant development,” said Arthur Hellman, a University of Pittsburgh School of Law professor. “There does appear to be a downturn in the number of 9th Circuit cases the Supreme Court has taken.” Several observers credited the decrease to a jump in the number of cases the 9th Circuit hears en banc, which has gone up precipitously in the last three years. “I think the most important development is that the 9th Circuit has changed its philosophy toward taking cases en banc,” said Rory Little, a Hastings College of the Law professor. Hellman agreed. “The 9th Circuit uses its own en banc process to bring its jurisprudence closer to the views of the Supreme Court.” Last year, the 9th Circuit took close to 20 cases en banc. Three years before, the number was below 10. Justice Sandra Day O’Connor said then that the 9th Circuit should consider taking more cases en banc to cut down on the circuit’s high reversal rate. The high court reversed 27 of 28 9th Circuit cases during its 1996-1997 term. None of the cases argued before the Supreme Court this year were heard en banc. In at least one, U.S. v. Locke, 120 S.Ct. 1135, there was a call to do so but not enough votes could be found. Judge Susan Graber dissented from the denial of rehearing. The final numbers could be interpreted as evidence that the appellate court has moved to the center. Of nine cases picked up by the Supreme Court (the tenth was a motions panel decision), five were penned by Republican appointees and four by Democratic appointees. Among those opinions granted certiorari, there were few clearly erroneous decisions. By and large, the Supreme Court reversals either made new law or cleared up conflicts between circuits. “This is a less exciting year with respect to the Supreme Court treatment of the 9th Circuit than in prior years. That much is clear,” said Stephen Wasby, a political science professor at University at Albany-SUNY. The highest-profile case was easily California Democratic Party v. Jones, 00 C.D.O.S 5083, in which the Supreme Court ruled blanket primary elections unconstitutional. Judge Betty Fletcher wrote the 9th Circuit opinion. The only judge overturned more than once was Diarmuid O’Scannlain, first in Locke and then in LAPD v. United Reporting Publishing Corp., 120 S.Ct. 483, a First Amendment case over access to police records. Considered a conservative himself, O’Scannlain’s rulings were overturned by the Supreme Court’s conservative wing. Although pleased that the numbers were down, Chief Judge Procter Hug Jr. is no fan of using them to measure the 9th Circuit. “The number and percentage of reversals is not an indication of how a circuit is doing,” Hug said. He pointed out that 900 petitions for certiorari were made, with only 10 granted. The Supreme Court kicked off the year by reversing the motions panel decision in Slack v. McDaniel, 120 S.Ct. 1595, a case chosen to decide a question raised by the Antiterrorism and Effective Death Penalty Act of 1996, in which the 9th Circuit followed the law of seven other circuits. It’s also hard to fault the 9th Circuit in Roe v. Flores Ortega, 120 S.Ct. 1029, when it ruled that a defense attorney’s failure to file an appeal without a client’s consent was ineffective assistance of counsel. The Supreme Court remanded the case, ruling that it wasn’t ineffective assistance per se. “The truth is, the rule they adopted and the rule the 9th Circuit adopted are about as close as they can be and still be different,” Little said. Interestingly, the panel in Ortega overturned Eastern District Judge Garland Burrell, whose rulings will be under the microscope in Theodore Kaczynski’s pending ineffective assistance claims to the 9th Circuit. In another case, Chief Judge Procter Hug applied Supreme Court precedent in Smith v. Robbins, 120 S.Ct. 746, but the court decided to adopt a new rule and reversed. That ruling should free states to experiment with habeas corpus procedures, Little said. The Supreme Court upheld Judge Melvin Brunetti in Ohler v. U.S., 120 S.Ct. 1851, with a 5-4 decision split along ideological lines. Although 9th Circuit cases still comprised a sizeable portion of the Supreme Court’s workload — the high court heard around 80 cases this term — the Supreme Court’s 9th Circuit workload is low compared to the work the circuit does. The 9th Circuit hears 18 percent of all federal filings. The ruling is also good news for advocates of preserving the circuit. In recent years, a debate has raged over the size of the court, which covers much of the western United States and hears — by far — more cases than any other appeals court. The 1996 reversal rate became a battle cry for the court’s detractors, who saw it as an indication the court couldn’t maintain unified jurisprudence because of the circuit’s massive size. The debate, which has been quiet for a year, is expected to pick up again once the November election is over. But circuit splitters will have to look elsewhere for reasons, since it appears the reversal rate has completed a return to normalcy and can’t be used to make political hay. “I don’t think they can,” Hug said, an avowed advocate of preserving the present court.

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