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The numbers just don’t jibe with the controversy. For the third year in a row, the 9th U.S. Circuit Court of Appeals — for many, the black-robed embodiment of crazy West Coast liberalism — fared about the same as other circuits when it came to getting reversed by the U.S. Supreme Court. But as the circuit moves toward shaking its reputation for being out of step with courts in the rest of the country, a new trend appears on the rise. “The most striking fact is not the reversal rate, but the number of cases accepted,” said Arthur Hellman, a professor at the University of Pittsburgh School of Law. 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.” Although the reversal rate was normal, the term was not without trouble. More than half of the 9th Circuit’s 19 reversals were unanimous. Those include Tuesday’s final case from the circuit, Sosa v. Alvarez-Machain, 04 C.D.O.S. 5790, which deals with the Federal Tort Claims Act and the Alien Tort statute. The 9th Circuit had allowed a man abducted from Mexico to sue the United States for false arrest. 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. Amar said the higher number of reviews could be linked to the flogging the circuit got in years past. “That lack of trust may carry forward even when the basis for it may not be there,” Amar said. Critics shouldn’t look to the recent session for ammunition to disparage the 9th Circuit. The U.S. Supreme Court reversed or vacated 76 percent of the 9th Circuit cases it heard this session. Collectively, the circuits were reversed 77 percent of the time. But comparisons between circuits are difficult when no other circuit comes close to the number of cases under review. The closest was the 6th Circuit, which contributed eight cases. Six were reversed. In last year’s session, the 9th Circuit’s reversal rate was 75 percent. Over the last three years, it has averaged 74 percent. In the last five years, the average is 78 percent, including a 90 percent rate for the 1999-2000 session. Whether the numbers will have any effect on the 9th’s notoriety remains to be seen. It’s still the circuit that took God out of the Pledge of Allegiance and temporarily stopped the California recall election. “The circuit is not going to be able to rid itself of its reputation,” said court watcher Thomas Goldstein of Goldstein & Howe in Washington, D.C. “It has been tarred and feathered as being liberal in the extreme. The most it can hope for is being liberal in moderation.” 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. One of the clearest ways the high court sends a message that it doesn’t like what a circuit is doing is through summary reversals. This year, the Supreme Court did that in two 9th Circuit cases — Middleton v. McNeil, 03 C.D.O.S. 3783, and Yarborough v. Gentry, 03 C.D.O.S. 9167. There were only two other summary reversals this term, indicating that justices are still closely watching the 9th. But circuit judges should also be encouraged, Goldstein said, because this year’s numbers are an improvement. Last year, four 9th Circuit cases were summarily reversed. Despite that, some 9th Circuit judges fared well. Richard Tallman and Thomas Nelson both wrote dissents in cases the high court later flipped. And one local judge, U.S. District Judge Charles Breyer, saw his case go up to the Supreme Court. With a 6-2 decision in Olympic Airways v. Husain, 04 C.D.O.S. 1528, Breyer’s decision was upheld. The 9th Circuit is already contributing its share of blockbuster cases to next term’s docket. Earlier this week, the high court granted cert in Ashcroft v. Raich, 03-1454, a Commerce Clause case in which the 9th Circuit held that the federal government has no business outlawing marijuana grown for personal, medical use. Related charts: How the West Was Reversed (with links to decisions) The 9th Circuit’s reversal rate through the years

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