clock menu more-arrow no yes mobile

Filed under:

How the 9th Circuit became conservatives’ least favorite court

Why Trump is attacking the West Coast’s court system.

Dylan Matthews is a senior correspondent and head writer for Vox's Future Perfect section and has worked at Vox since 2014. He is particularly interested in global health and pandemic prevention, anti-poverty efforts, economic policy and theory, and conflicts about the right way to do philanthropy.

On Tuesday night a federal district court judge in California blocked the Trump administration from shutting down the Deferred Action for Childhood Arrivals (DACA) immigration program, which protects undocumented immigrants who arrived as children from deportation.

On Twitter, Trump said that while he disagrees with the verdict, he’ll respect the judge’s decision, appreciates the independence of the judiciary, and will wait for the appeals process to take its course.

Hahahaha, no, of course he didn’t, this is what he tweeted instead:

William Alsup, the judge who issued the ruling defending DACA, serves on the US District Court for the Northern District of California. But Trump’s insult is less about the District Court on which Alsup serves, and more about the Ninth Circuit Court of Appeals, the appellate court to which the case proceeds now. (The district court is a trial court within the Ninth Circuit; the appellate court is one step higher on the ladder and oversees all individual districts.)

The tweet is more than idle vituperation on the president’s part or a continuation of his diatribes about judges who rule against him. It reflects a widespread loathing of the Ninth Circuit, specifically, that has grown in conservative circles for years. The circuit’s appellate court, which covers California, Washington, Oregon, Arizona, Nevada, Idaho, Hawaii, Alaska, and Montana, has long been stereotyped as a liberal outlier, prone to left-wing rulings that are frequently reversed by the Supreme Court on appeal.

Rush Limbaugh calls it “the Ninth Circus”; Newt Gingrich, while running for president in 2011, called it “anti-American” and “dictatorial,” and demanded its abolition. Trump himself has attacked the Ninth Circuit in the past when other district judges have struck down versions of his Muslim travel ban and his restrictions on “sanctuary cities.”

The circuit also makes news more than its peers due to its sheer size and reach. The Ninth Circuit is by far the largest federal appellate court, with 29 judges. (The Fifth Circuit, covering Texas, Louisiana, and Mississippi, is second, with 17.) The Ninth covers a population of 64.3 million people, according to the latest Census data, or nearly 20 percent of the US. The 11th Circuit in Florida/Georgia/Alabama, which has the second-largest population of the circuits, only covers 36.3 million people.

But its reputation as a massive outlier is somewhat undeserved. While the Ninth Circuit has some of the nation’s most famous liberal jurists, it has more ideological diversity than its critics give it credit for, and it’s evolved considerably from the 1980s, when its reputation took shape.

How liberal is the Ninth Circuit?

The Court’s reputation arguably derives from its transformation under President Jimmy Carter. While Carter was the only the fourth president to make no appointments to the Supreme Court, he did appoint 15 people to the Ninth Circuit Court of Appeals, out of 23 judges total at the time. (It’s since expanded.)

“Carter appointed some of the most liberal judges ever, to any court,” Alex Kozinski, a Reagan appointee and former chief judge of the Ninth Circuit who retired following repeated accusations of sexual harassment last year, told the New York Times in 2010.

Stephen Reinhardt, a Carter appointee who’s still serving, is widely viewed as one of the most liberal appellate judges on federal courts. He wrote the Ninth Circuit’s opinion striking down California’s same-sex marriage ban Proposition 8 in 2012, ruled that the Second Amendment doesn’t recognize an individual right to bear arms, and argued that bans on assisted suicide are unconstitutional.

He also joined in one of the court’s most notorious rulings in 2002, in which Judge Alfred Goodwin wrote that the Pledge of Allegiance’s “under God” clause is an unconstitutional endorsement of religion.

But Reinhardt is increasingly a liberal outlier on the court. It also includes conservative luminaries like Diarmuid O’Scannlain (a Reagan appointee who took senior status in 2016) and Kozinski.

Political science research attempting to quantify appellate judges’ politics also finds that the court has changed with time. A 2007 look at Judicial Common Space scores by political scientists Lee Epstein, Andrew Martin, Jeffrey Segal, and Chad Westerland found that the Ninth Circuit was among the most liberal appellate courts. But they also found that it shared the distinction with the Second Circuit, had a number of conservative judges, and grew sharply less liberal as a result of Reagan and George H.W. Bush’s appointments, before rebounding as a result of Clinton’s.

The Ninth Circuit’s trajectory over time is represented by the bottom left chart below; when the line goes lower, it means the court is getting more liberal; when it goes higher, it means the court is getting more conservative.

Judicial ideology scores based on Senators’ opinions Epstein, Martin, Segal, Westerland 2007

But that analysis ended at 2000. A more recent attempt to measure judicial ideology, covering data up to 2014, relied on campaign donations by law clerks; the earlier study used the ideology of home-state senators who approved the judges’ appointments.

While most law clerks, even for conservative judges, tend to be liberals who donate to Democratic politicians, conservative judges are still likelier to hire conservatives, and liberal ones likelier to hire liberals, so average clerk ideology can give a sense of where the different courts stand relative to each other.

Political scientists and legal scholars Adam Bonica, Adam Chilton, Jacob Goldin, Kyle Rozema, and Maya Sen found that the court with the most liberal clerks was not the Ninth Circuit, but the First Circuit, headquartered in Boston; the Second Circuit, based in New York City, also hired more liberal clerks than the Ninth Circuit:

Ideology by court, as measured by clerks’ donations Bonica, Chilton, Goldin, Rozema, Sen 2016

Conservatives like Trump like to make hay of the Ninth Circuit’s high rate of reversals by the Supreme Court. And it’s true: Most of its rulings that make it to the Supreme Court are overturned.

But that’s true for literally every appellate court. After all, why would the Supreme Court accept an appeal if it didn’t think it was likely to overturn the lower court?

Moreover, the Ninth Circuit is not the most frequently overturned circuit court. From 2010 to 2015, the Supreme Court reversed about 70 percent of the cases it took, and 79 percent from the Ninth Circuit. But it reversed 87 percent of Sixth Circuit rulings, and 85 percent of 11th Circuit rulings, both of which are notably more conservative courts than the Ninth.

Intriguingly, the reversal rate doesn’t seem to have much to do with how liberal or conservative an appeals court is. The absolute lowest reversal rate goes to the 10th Circuit, a fairly moderate court, while second prize goes to the First Circuit (liberal) and the Fourth Circuit (conservative).

Of course, these measures are about the appeals court, and despite Trump directing his ire at the circuit level, the DACA decision that set him up is at a district level. It’ll be a while yet before the case and related challenges to Trump’s DACA decision-making filter up to the Supreme Court and become part of the Ninth Circuit’s overall reversal (or nonreversal) statistics.