Last semester, SCOTUSBlog stopped publishing its reliable StatPack. I’m pleased that Adam Feldman and Jake Truscott published a statistical review of OT 2023. Here, I want to tease out one data point.
Which track has the highest reversal rate? It has to be the Fifth Circuit, right? No, that’s the Second Circuit. The Second Circuit’s reversal rate is 85.71%. For those following the games at home, all but one game was unanimous in a 9-0 comeback: Murray v UBS, Macquarie, Bissonnette, stone cutterand NRA v. Uro.
For the Fifth Circuit, if we include consolidated cases (e.g. atomic force microscopeand Network selection), the reversal rate is 72.73%. The most prominent consistent reversal is in atomic force microscope. Another unanimous reversal has come de VilliersAlthough the basis for this decision is completely different from the Fifth Circuit’s ruling, in some ways it is actually a victory for Texas. (No, I won’t get into that mess again.) Network selection Kind of consistent, but it’s a very strange reversal. It’s worth mentioning that the Eleventh Circuit was also reversed (it seems the SEC East has a much higher confirmation rate than the SEC West.) The other reversals in the Fifth Circuit were tied at 8-1 (Laxmi and Trevino), 7-2 (CFPB), and 6-3 (Murthy).
By my rough count, the 2nd Circuit may have a worse term this year than the 5th Circuit. But it doesn’t fit the narrative.
Another interesting data point. The Fifth Circuit received 421 petitions for certiorari. (At least 420 of them came from the Solicitor General’s Office – I’m kidding, I’m kidding). The much larger Ninth Circuit had only 382 petitions for certification. The Second Circuit had a higher rejection rate, but only received 129 certiorari petitions.
I realize it has become fashionable to go to the Fifth Circuit and accuse the circuit’s attorneys of the shoddy quality of their advocacy. Today, the Texas Tribune quoted me in an article titled “U.S. Supreme Court Overturns 5th Circuit Again and Again.” But I think this criticism misses the point. I told the tribe:
Josh Blackman, a professor at South Texas College of Law, said the rulings reflect the simple fact that the 5th Circuit sits to the right of the Supreme Court.
“Every judge takes an oath to the Constitution, and I think the judges on the 5th Circuit and all the courts have a very strong view of what the Constitution means,” Blackman said. “The Supreme Court disagrees with that. That’s theirs. Decide.”
…
The Supreme Court’s repeated denials are unlikely to affect how the 5th Circuit rules in the future.
“The Fifth Circuit judges no longer work for the Supreme Court, just like I no longer work for you,” Blackman said. “It’s a myth that the Fifth Circuit will say, ‘Oh my gosh, I was reversed. Maybe I should rule differently next time.'”
Blackman said it’s not the appellate judges’ job to try to guess which opinions the Supreme Court will support.
The bigger question is when courts will change doctrine on an ad hoc basis. This makes it more difficult for lower court judges to perform their duties. I think this is especially true Laxmi (Second Amendment and Face Challenge) and Murthy (Standing), two spectacular comebacks.
