The Supreme Court sits high atop the hierarchy of federal courts. Right beneath the Supreme Court sits the federal courts of appeals. These courts are constrained by Supreme Court decisions through stare decisis which leaves a binding imprint. The relationship between the Supreme Court and the federal courts of appeals runs deeper though. The Court takes most of its cases each term in the form of reviewing decisions by courts of appeals panels. The Supreme Court also reverses a majority of the decisions it reviews including those from courts of appeals panels. This is the first post in a two post series looking at the Supreme Court’s review of federal courts of appeals panel decisions. This post focuses on the judges in the lower courts whose decisions are reviewed and who has been affirmed and reviewed most often. The second post will focus on the individual justices’ decisions in each case.
Scholars in this area have been primarily focused on models that explain the relationship between higher court monitoring and lower court obedience. Professor Pauline Kim for example has written articles that examine this relationship and the amount of lower court discretion that this relationship affords. Professors Lee Epstein et al. apply strategic theory to the hierarchical models to help explain the behavioral motivations. This post takes a look at who is involved in this process in the courts of appeals in recent years by focusing on the 2018, 2019, and 2020 Supreme Court decisions rendered so far involving review of courts of appeals panel decisions.
The identification of the relevant judges for this post was made possible by data from the Supreme Court’s website and SCOTUSBlog. The Supreme Court Database was used to determine when cases were affirmed and when they were overturned for the 2018 and 2019 terms. Cases decided in the 2020 term were coded separately.
Each Supreme Court Term, SCOTUSBlog puts out a Circuit Scorecard that reviews the frequency of cases affirmed and overturned by the Supreme Court. In a similar manner, the first figure in this post looks at Supreme Court decisions affirming and reversing circuit court panel decisions over the course of this two-plus year period.
More panel decisions were reviewed and either affirmed or reversed from the Ninth Circuit than from any other circuit. That is not entirely surprising given the size of the Circuit. These decisions were overwhelmingly reversed or vacated with an 84% overturn rate. The Second and Fifth Circuits also had high overturn rates, each at 78%. On the other end of the spectrum the Sixth Circuit had only a 33.3% overturn rate and the Fourth Circuit had a 37.5% overturn rate. This large differential shows that that across all panel decisions reviewed, the Supreme Court was in much greater agreement with certain circuits.
The focus of this post is on which judges’ decisions were reviewed. Since decisions from the Ninth Circuit dominated the Court’s review it should come as no surprise that Ninth Circuit judges are positioned atop the figure for overall review of panel votes. The following figure shows which judges had at least three panel votes reviewed between the 2018 term and the present.
Judges Nguyen and Graber were each on five panels whose opinions were reviewed by the Supreme Court. Judges who had four panel votes include Judge Fuentes from the Third Circuit, Judges Higginbotham and Elrod from the Fifth Circuit, Judge Moore from the Sixth Circuit, Judges Wallace, Paez, Berzon, McKeown, and Bea from the Ninth Circuit, Judge Briscoe from the Tenth Circuit, and Judges William Pryor, Wilson, and Carnes from the Eleventh Circuit.
Of course we are not only interested in which judges had their decisions reviewed, but also whether the Supreme Court Justices agreed or disagreed with the lower court judges’ positions. The following figure shows which judges the justices agreed with most often.
Three judges had three panel votes affirmed by the Supreme Court — Judge King from the Fourth Circuit, Judge Moore from the Sixth Circuit, and Judge Wilson from the Eleventh Circuit. The Eleventh Circuit also has the most judges with at least two panel votes affirmed at five.
As the next figure shows, the Ninth Circuit has the most judges with at least three votes in opposition to the Supreme Court’s position on review.
The only judge with five votes overturned by the Supreme Court was Judge Nguyen from the Ninth Circuit. Four judges had four votes overturned including three from the Ninth Circuit — Judges Paez, McKeown, and Berzon — and one from the Eleventh Circuit — Judge Carnes.
The data from the post confirms the common assumption that the Ninth Circuit is still the most heavily overturned judicial circuit in the nation. It also shows the relative success of judges on several circuits — most notably on the Eleventh and Sixth. The next post in this series will look at whether partisanship of appointing president plays a role in these relationships between Supreme Court Justices and circuit court judges in an effort to better explain the judicial behavior inherent in this judicial hierarchy.
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