Lower Court Disobedience & the Ninth Circuit

It is commonly accepted that “the Ninth Circuit is the most watched, and most criticized, of all the lower federal courts in the country.” One of the Circuit’s own judges conceded that: “[I]t is the circuit reversed unanimously by the U.S. Supreme Court the most; and it is the circuit, when reversed, which draws the fewest dissents in the U.S. Supreme Court. These is some message there. The message has been out there for all to read and hear for years.”

I submit that this “message” of a “singularly poor” appellate record by the Ninth Circuit may in fact be changing, and is somewhat misleading in any event. In this essay, I give a number of possible explanations that might account for the better record for the Ninth Circuit during its 2003 term.