President Donald Trump kicked off Thanksgiving with a well-wish to the world and double-down on the Chief Justice John Roberts situation. Now, White House counselor Kellyanne Conway’s attorney husband George has chimed in to say that the president is using a “misleading” statistic to criticize the United States Court of Appeals for the Ninth Circuit.
The president repeated the claim Thursday morning that the “9th Circuit is a complete & total disaster,” which has been legislating the security of America while not knowing anything about this. On Wednesday he advised Chief Justice Roberts to “study the numbers.” On Thursday, Trump trotted out a number: “Justice Roberts can say what he wants, but the 9th Circuit is a complete & total disaster. It is out of control, has a horrible reputation, is overturned more than any Circuit in the Country, 79%.”
Take it away, George Conway, the man with the stats:
The number of Ninth Circuit cases reviewed and reversed was high, but the Ninth Circuit is by far largest federal circuit by number of judges and size of docket.
— George Conway (@gtconway3d) November 22, 2018
“The reversal rate for all courts in the Supreme Court last year was 74%. All these statistics tell us is that one major factor in the Supreme Court’s selection of which cases to review is whether they may have been wrongly decided,” he said.
Conway added that while the “number of Ninth Circuit cases reviewed and reversed was high […] the Ninth Circuit is by far [the] largest federal circuit by number of judges and size of docket.”
“Anyway to put the point more simply, the Supreme Court doesn’t usually take cases to affirm them, which is why the statistic is citing is misleading,” he continued. “As Adam Liptak wrote in yesterday’s New York Times, the Ninth Circuit covers ‘a fifth of the nation’s population and a third of its land, in nine states and two territories’ —hence the huge docket.”
Anyway, to put the point more simply, the Supreme Court doesn’t usually take cases to affirm them, which is why the statistic the President is citing is misleading.
— George Conway (@gtconway3d) November 22, 2018
Conway wasn’t alone in this criticism of the president.
University of Texas Law Prof. Steve Vladeck pointed out many of the same issues with Trump’s tweet.
4. Now, let's turn to the attack on the Ninth Circuit itself.
Trump's claim that it's the appeals court most often reversed by #SCOTUS is categorically false, whether over the last two years, five years, or longer. In fact, that honor goes to the Third Circuit (NJ, PA, DE, VI).
— Steve Vladeck (@steve_vladeck) November 22, 2018
5. As I've noted previously, over the past five Terms, three other circuits have been reversed in a higher percentage of the cases #SCOTUS has reviewed from those courts (the Third, Sixth, and Eleventh Circuits):https://t.co/IsWYUxDkRI
So here, @realDonaldTrump is just lying.
— Steve Vladeck (@steve_vladeck) November 22, 2018
7. Because it is, by far, the largest appeals court in the country, both geographically and by docket size. As these statistics show, far more cases were filed, decided, and remained pending in the Ninth Circuit last year than in any other appeals court:https://t.co/VcB3CcMlY7
— Steve Vladeck (@steve_vladeck) November 22, 2018
8. Some folks still insist that being reversed in 48/60 cases over five Terms is high. Keep in mind, though, that #SCOTUS chooses almost all of the cases it hears.
99.9% of lower-court rulings, _including_ those by the Ninth Circuit, are never reviewed by the Justices.
— Steve Vladeck (@steve_vladeck) November 22, 2018
14. To be sure, progressive plaintiffs often choose the Ninth Circuit, just as conservatives choose the Fifth. But that's not to get a "guaranteed result" so much as it is to try to take advantage of favorable precedents, something all good litigants do.
— Steve Vladeck (@steve_vladeck) November 22, 2018
Or, put another way:
For example, in 2014, the 2d Cir. had a SCOTUS reversal rate of 100 percent. ONE HUNDRED PERCENT REVERSAL!!! Of course, SCOTUS only took two cases from the 2d Cir. that year. You see the problem.
— Gabriel Malor (@gabrielmalor) November 22, 2018
To circle back: no, the 9th Cir. isn't the "most overturned" circuit. That wasn't true when conservatives claimed it during the Bush years. It wasn't during the Obama years. It wasn't true last year (that honor goes to a tie bw 1st, 3d, 6th Cirs.).
— Gabriel Malor (@gabrielmalor) November 22, 2018
As for the 79% overturned rate for the 9th Cir. claimed by Trump, that number comes from SCOTUS decisions between 2010 and 2015. So it's already out of date. But more importantly, in that same time frame the 6th Cir. was overturned 87% of the time and the 11th 85%!
— Gabriel Malor (@gabrielmalor) November 22, 2018
In short: Trump is either ignorant or lying, the Fox News hosts who are repeating his 79% claim all morning are also ignorant or lying.
— Gabriel Malor (@gabrielmalor) November 22, 2018
Most recently, Conway took President Trump to task for replacing Jeff Sessions with acting Attorney Attorney General Matthew Whitaker, calling the move “illegal.”
He’s also a founding member of the new conservative lawyers group “Checks and Balances,” which was started to “protect constitutional principles that are being undermined by the statements and actions of this president.”
[Image via Chip Somodevilla/Getty Images]
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