Each year, Tom Goldstein, co-founder of the widely read SCOTUSblog, compiles and releases Supreme Court statistics. Last month, Mr. Goldstein released the final “Stat Pack” for the Supreme Court’s most recent October 2010 term with these results: The Court reversed or vacated seventy-nine percent of the decisions it reviewed. Circuits with the highest percentage of reversals included the Sixth Circuit (eighty-three percent) and the Fifth Circuit (eighty percent). The Ninth Circuit came in third at seventy-nine percent.

There is nothing remarkable about these figures. SCOTUS scorecards demonstrate that over time the Supreme Court will typically reverse or remand seventy to seventy-five percent of the cases it hears. Most (if not nearly all) circuits are reversed at levels well above the fifty-percent mark year after year.

What is interesting, though, is the reaction to these numbers – in particular, the media’s condemnation of the Ninth Circuit. Referencing the SCOTUSblog figures, the Los Angeles Times reported this week that “it was another bruising year for the liberal justices of … the 9th Circuit.” The American Bar Association agreed writing, “the Ninth Circuit took another beating from the United States Supreme Court this past term”.  Earlier in the year, media attacks on the Ninth Circuit were equally disapproving with headlines like “SCOTUS smackdown of the Ninth Circuit.”

The Ninth Circuit has been a media punching bag for many years, but looking at the SCOTUS figures, I wonder how much of the recent criticism is misplaced. In the October 2009 term, the circuit courts were reversed seventy-one percent of the time. That year, while the Supreme Court reversed eighty percent of Ninth Circuit cases, three other circuits plus the grouping of all appeals taken from state courts had higher reversal rates. The year prior, during the 2008 term, the Ninth Circuit was reversed only sixty percent of the time, well under the seventy-six percent reversal rate for all cases. Seven other circuits that year had higher reversal rates than the Ninth Circuit; six of them were reversed at the one-hundred percent level.

If it’s the numbers speaking, why isn’t the story about the much higher reversal rates we see out of the Fifth and Sixth Circuits?  Why has no one written about the propensity of the Supreme Court to turn back state Supreme Court decisions which, in this past term, were reversed at a rate of one-hundred percent?  Are we to discount the importance of the five Ninth Circuit opinions upheld by the Supreme Court or disregard the reversals by a narrow 5-4 split?  

Commentators who question using reversal rates as a benchmark for court performance point out that the Supreme Court reviews only a very tiny percentage of the total number of circuit court decisions.  Drawing generalization and creating themes from such a small sampling would be an imprecise science at best, misleading at worst. Furthermore, because circuit courts are comprised of judges who occupy every corner of the ideological spectrum, reaching consensus has more to do with the make-up of a particular panel than anything else.   

The Times points out that while seventy-nine percent may not be unusual in terms of past records, twelve of the reversals this year were unanimous which, it argues, may indicate that the Ninth Circuit is more “often out of step with even the high court’s liberal justices.”  But implicit in this remark is an assumption that Supreme Court opinions, even if unanimous, are somehow more “correct” – certainly, a debatable conclusion.   

In my reading about reversal rates I found two articles of particular interest:  The first, a recent essay by Diarmuid F. O’Scannlain of the Ninth Circuit, widely considered the that court’s most conservative jurist, decries Ninth Circuit reversal statistics (the Ninth Circuit’s record is “strikingly poor”), but raises some interesting questions about whether nominal percentage differences between circuits should mean anything.  The other article (76 MOLR 315) raised what I thought an interesting approach to judging our judges: instead of using reversal statistics as a measuring stick, why not measure performance according to the mix of positive and negative citations to legal opinions.  For more on this, see Judging the Judges in Research References below.

RESEARCH REFERENCES

General: Those interested in reading more about Supreme Court reversal rates and the role of judicial statistics, might consider a structured search in WestlawNext along these lines:

“circuit court” “supreme court” “ninth circuit” /50 (reversal /2 rate) /100 statis!

Circuits by Supreme Court Term: The Court’s term runs from the first Monday in October to the first Monday of October the following year.  The synopsis of the Supreme Court case will reference the origins of the case as well as the Court’s holding.   So, to approximate the research discussed in this article, try the following in the SCT database:

da(aft 09/03/2009 and bef 10/04/2010) and sy(ninth-circuit)

Judging the Judges:

For this analysis we’re picking on Alex Kozinski.  To perform an analysis of positive/negative citations recommended by the Missouri law review referenced above, we began with a search in opions by Kozinski from 2010 forward: In CTA9, try ju(kozinski) and da(aft 2009).  Then, we downloaded  just the citations to Word.  We ran this word document through WestCheck for Cases and Negative History only.  Call the Reference Attorneys if you’d like us to walk you through this process.  The sample report is here: Kozinski. (Note: This Word document is about 90 pages long.  The obvious benefit of reversal rates, is that they are a convenient snapshot.)

Reversal reports are available for individual judges from Profiler-WLD databases.  Find the table for Appeals of Decisions BY (not TO) Judge.

A few days ago, we noticed an interesting story in the New York Times regarding the U.S. Supreme Court and the use of dictionaries. The Marquette Law Review, as cited by the article, released a study that found a significant rise in the number of times the Court cites to a dictionary. You can view the study on Westlaw at 94 MARQLR 77. The New York Times article talked to various law professors, lexicographers, and lawyers who looked with caution on this increase. One interesting quote is from a professor at Loyal Law School, commenting about how the press tends to influence dictionary definitions.

“It may also be a surprise to the Supreme Court justices who look to dictionaries as authorities in construing statutes,” Ms. Aprill wrote in the Arizona State Law Journal, “that in good measure they are interpreting law according to The New York Times.”

If you wanted to see U.S. Supreme Court cases that cite to a dictionary, try this search through the U.S. Supreme Court cases (SCT) on Westlaw:

american webster random-house black! oxford /5 dictionary

There are many ways to find definitions on Westlaw. We have the 9th edition of Black’s Law in the BLACKS database. There is also the Word and Phrases database (WORDS-PHRASES) which stores various definitions from cases.

If you wanted to search caselaw directly, there are two different searches that I like to use. First is the Words & Phrases field. If you put your search team in the WP() field, any cases that define that term in the headnote will appear. Another search is to try:

term word phrase +1 [search term]

Most courts will phrase a definition as “we define the term” or “the word [search term] means.” This search has been very helpful in finding definitions.

I have a feeling that the debate over whether Justices Thomas and Kagan should recuse themselves from consideration of the Affordable Care Act is just getting started.  So far, Republicans have demanded that Kagan step aside because of her previous work as President Obama’s Solicitor General.  Then, seventy-four Democratic members of the Congress signed a letter to Justice Clarence Thomas asking that he recuse himself from the case because his wife’s work as a lobbyist for a group opposing the Health Care law creates the appearance of a conflict of interest.  Just yesterday, there was news that members of the Congress are working to see that Justice Thomas is disbarred.  A Complaint seeking his disbarment was filed in Missouri late last month.   

Leaving aside the merits of the debate, what I find so interesting about the calls for recusal is that the only authority that can impose recusal is the individual justice.  There is no procedure that would require a justice to step down, nor is there an appeal process in place following a decision not to recuse, as contrasted to the lower courts. Moreover, the United States Supreme Court is the only governmental entity that is not subject to any mandatory ethics requirements.  

This has led some commentators to urge the adoption of legislation that would require ethical accountability for Supreme Court justices.  In this Washinton Post Op-ed, Nan Aron suggests legistation that would make Supreme Court justices accountable to an ethics code.  To enforce compliance she suggests “adjudication by other sitting justices, retired justices, lower court judges, the judicial conference or some combination of these.”  

Recently, the Congress has taken up Ms. Aron’s charge.  One bill introduced March 1 would establish recusal procedures including public disclosure of the reasons for recusal and a process that would allow parties to request the Court to decide whether a particular justice has a conflict of interest. It would also apply the Code of Conduct for United States Judges to the Supreme Court.  It currently applies only to other Federal judges.   

Another bill (2010 WL 3911894) introduced by Senator Leahy would authorize the designation and assignment of retired justices of the Supreme Court to a particular case in which an active justice is recused.  Introducing the bill, Leahy noted: “Allowing retired justices to sit on the Supreme Court would encourage sitting justices to recuse themselves when there is even an appearance of a conflict of interest.”  156 Cong. Rc. S7791-01   2010 WL 3911894

Passage of any law that would limit Supreme Court power seems, well, unlikely.  For now, the volume of the debate will likely get very loud as the case nears the High Court.

In my reading about recusal, I found these additional references interesting:

Clarence Thomas’ dangerous conceit in the Los Angeles Times

The Court’s Recusal Problem in the New York Times

In a recent decision delivered by Chief Justice Roberts, the United States Supreme Court addressed the question whether the First Amendment shields church members from tort liability for their hateful speech. The followers of the Westboro Baptist Church in Topeka, Kansas (Defendants), believe that God hates and punishes the United States for its tolerance of homosexuality, particularly in America’s military. Defendants picketed the funeral of Marine Lance Corporal Snyder, who was killed in Iraq in the line of duty. Defendants picketed on public land displaying signs stating, e.g., “Thank God for Dead Soldiers,” “Fags Doom Nations,” “America is Doomed,” “Priests Rape Boys,” and “You’re Going to Hell”, approximately 1,000 feet from the church where the funeral was held. Plaintiff, father of the deceased soldier, filed action under various tort theories.  Justice Roberts stated, “Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and-as it did here-inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course-to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.” Snyder v. Phelps, 09-751, 2011 WL 709517 (U.S. Mar. 2, 2011). The Supreme Court oral argument transcript is here: 2010 WL 3907899.

U.S. Supreme Court Justice Clarence Thomas has gone nearly five years without asking a question during oral argument before the Court.  According to this New York Times story, his last question came on February 22, 2006 (H/T Wall Street Journal Law Blog).

To find Justice Thomas’s most recent question, we can search the Supreme Court Oral Argument Transcripts (located in the SCT-ORALARG database on Westlaw.com, and available via the Trial & Oral Argument Transcripts category page on WestlawNext).  A search for Justice /2 Thomas & da(2/22/2006) returns just one transcript, Holmes v. South Carolina.  The transcript of that argument (2006 WL 496231) contains the last verbal interaction between Justice Thomas and a litigant before the Court.

Note: The database mentioned above contains transcripts beginning with the Court’s 1990-1991 term.  However, prior to October 2004, the Court did not indicate on the transcript which Justice had asked a specific question.  Instead, the generic term “Question:” was used to indicate that a member of the Court had asked a question.  Thus, when searching for older transcripts, one would not want to search by the Justice’s name as we did above.

Let me start by saying, the e-Verify data is NOT on Westlaw (a surprisingly common request). But, in response to Mr. Hodnicki’s post, the Supreme Court clerks are welcome to call us.  A few of our recommendations:

CASELAW

KeyNumber: 238k1

FLETCHER-CYC

Fletcher Cyclopedia of the Law of Corporations.  See FLETCHER-CYC § 2863: “Much confusion has arisen from not distinguishing clearly between the franchise of a corporation, which can only be granted by the state, and the permission, by ordinance, of a municipality for the exercise of the corporate franchise within the municipality. The latter is not a franchise, although it is often so referred. It is a license.” People v. Union Gas & Electric Co., 254 Ill 395, 98 NE 768.

ALR and CJS

CJS LICENSES § 1 et. seq.

American Law Reports: I’m a huge fan of ALR.  American Law Reports (ALR) is a great resource when you desire great depth for a narrow topic.  For example, Propriety of Federal Court’s Abstention, Under Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098, 87 L. Ed. 1424 (1943), as to Claim that State or Local Statute or Regulation, or Application Thereof, Violates Federal Constitution or Conflicts with Federal Statute or Regulation—Issues Other than Land Use, Zoning, Social Welfare, or Family Law is approximately 90 pages long. I’m thinking ALR is not ripe for this research.  But, just in case, you might try “licenses and permits” in the ALRINDEX.

I welcome recommendations for those of you following this case.

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Eugene Volokh’s brief review of our SCT-BRIEF database yielded just 7 amica curiae, that’s “amica” as in singular feminine for friend of the court.   Should we be changing the gender and number of the Latin word as needed?  Like other Romance languages, gender and case change word endings. I’m a little rusty on my Latin.  It’s been 11 years but I found my former Latin teacher.  He confirmed for me the endings for Amicus Curiae:

Singular Male – Amicus Curiae

Plural Male – Amici Curiae

Singular Female – Amica Curiae

Plural Female – Amicae Curiae

Thus, an amicus curiae brief filed by a group of female law professors would be correctly termed an “amicae curiae” brief. So, can this affect your research? Yes. A search of Amicus Curiae in the Document Title field in U.S. Supreme Court Briefs database returns over 20,000 results,  including both Amicus and Amici briefs.  When we eliminate the Amicus Curiae the search retrieves 6813 briefs that are titled Amici Curiae.

dt(“amicus curiae”) % dt(“#amicus curiae”) (6813 Docs)

Note the #-sign ensures Westlaw only delivers the plural.  Why not just run dt(amici)?  We wanted to test whether Westlaw delivered the plural on the latin. We discovered it does for amicus but not for amica.  What gives?  We’re reporting this.  For now, try:

dt(amicae amica +2 curiae): 12 results

There was some discussion amongst my colleagues why we couldn’t just have gender neutral terms, this being the 21st century and all. According to the Notre Dame Online Latin Dictionary, the word amicus not only has a masculine and feminine ending, but also a neutered ending. Therefore, couldn’t one use the neutered ending to create the following?:

Singular – Amicum Curiae

Plural – Amica Curiae

This would eliminate the need to switch endings depending on the gender of the person/people filing the brief.

A final option would be to follow the example of the Federal Government with its Plain Language initiative. This would entail eliminate the Latin phrase all together and replacing it with “friend of the court.” People wouldn’t need to worry about which endings to use and would make the law slightly more accessible to the general public. Of course, we would lose the beautiful language that is Latin.

Wow, that’s a lot of Latin discussion. I think I’m going to go read Iliad in the original Greek.

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The United States Supreme Court commences its 2010-2011 term on Monday October 4, 2010 with its newest Associate Justice Elena Kagan making it a three women presence on the bench. The term commences with a full docket, but Justice Kagan will not be active in many of the cases scheduled before the Court due to her work as Solicitor General and has already recused herself from many of the cases scheduled for hearing this term.  

Keeping on top of Supreme Court Research

A question we get asked often is how soon does Westlaw have Supreme Court decisions? Given the importance of Supreme Court decisions, usually, the full text of a Supreme Court opinion is added to Westlaw within twenty minutes of the courts announcement of the decision. You can keep abreast of the decisions by setting up a WestClip to get automatically notified of the latest decisions handed down by the Supreme Court. As an example:

Database: SCT Query: PR(SUPREME-COURT)

The first time you run the above search, you will get thousands of cases but once you add it as a WestClip, the Clip will only update your research and notify you based on the frequency you select.  

Excluding Supreme Court Orders from Supreme Court Cases Another question we get often from our researchers is how do you exclude Supreme Court Orders from Supreme Court Cases? A simple field restriction to the search helps to eliminate as many memorandum documents from the result as possible:

Database: SCT Query:  da(2010) & sy(court) % ci(mem)

Other Relevant Supreme Court Databases on Westlaw

SCT-ORALARG: Transcripts of U.S. Supreme Court Oral Arguments SCT-BRIEF: U.S. Supreme Court Briefs SCT-JA: United States Supreme Court Joint Appendices SCT-PREVIEW: Preview of U.S. Supreme Court Cases WLB-SCT: WESTLAW Bulletin – U.S. Supreme Court //

Credit: Reuters/Jonathan Ernst

By a 63 to 37 vote today, the Senate has confirmed the appointment of Elena Kagan to the United States Supreme Court as its 112th Justice.  Five Republicans joined the Democrats in supporting the nomination, Susan Collins (ME), Lindsey Graham (SC), Richard Lugar (IN), Olympia Snowe (ME) and Judd Gregg (NH).

President Obama, under the authority derived from Article II, section 2, clause 2 of the United States Constitution (USCA CONST Art. II § 2, cl. 2) nominated Elena Kagan for the position of Associate Justice to the US Supreme Court on May 10, 2010 to fill the position vacated by retiring Justice John Paul Stevens. The Senate, under the “Advice and Consent” clause of the same Constitutional Provision confirmed the nomination to make Elena Kagan the fourth woman Justice to serve on the US Supreme Court.

To gain a better understanding of our newest Justice, check Elena Kagan’s Profile with over 5,000 references and dig deeper by accessing her customizable Litigation History Report from her profile:

Database: PROFILER-WLD

Query: IND(ELENA /3 KAGAN)

Related Posts:

Kagan and the Commerce Clause

Elena Kagan Testimony

Vetting a Non-Judge Supreme Court Candidate

Getting an edge at SCOTUS prediction

What Does a Solicitor General Do?

Kagan’s Law Review Article on the Nomination Process

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On Tuesday this week the New York Times featured an interesting editorial about the Elena Kagan confirmation hearings.  The editorial suggested that the debate over (and Republican resistance to) Kagan’s Supreme Court nomination is not so much a debate about Kagan herself as it is a microcosm of the larger issue of the role of the federal government—and what part the Commerce Clause plays in that role.

Yet dozens of Senate Republicans are ready to vote against her, and many are citing her interpretation of the commerce clause of the Constitution, the one that says Congress has the power to regulate commerce among the states. At her confirmation hearings, Ms. Kagan refused to take the Republican bait and agree to suggest limits on that clause’s meaning. This infuriated the conservatives on the Senate Judiciary Committee because it has been that clause, more than any other, that has been at the heart of the expansion of government power since the New Deal.

The Constitution generally and the Commerce Clause in particular are not something many attorneys have to research, so when the time finally comes a lot of callers can be unsure how to even pull it up on Westlaw.  The Constitution is kept in the USCA database; you can find it near the top of the Table of Contents.  Each clause is broken down into its own document, so it’s easy to focus your research on a section.  For example, looking at the citing references for the Commerce Clause I can see that there are over 25,000 documents on Westlaw discussing it!

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