Author: Ben Winograd

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This post was written by Ben Winograd, with research assistance from Adam Chandler and Jason Harrow. In Wednesday’s Los Angeles Times (link here), Brian T. Fitzpatrick, a Vanderbilt law professor and former clerk to Justice Scalia, notes that the 9th Circuit was reversed more than any other court last term, and argues that splitting the circuit in half could reduce the overall number of decisions that would be appealed to – and presumably overturned by – the Supreme Court. Why? Because the types of decisions reversed in Washington typically are the result of a few ‘extreme’ judges, Fitzpatrick says, splitting the circuit in half would statistically reduce the number of panels on which such judges constitute a majority. To demonstrate his point, he writes: “Consider a hypothetical court of 28 judges (the number of active judges currently on the 9th Circuit), in which six of the judges are extreme. The probability of such a court randomly selecting a panel with at least two extreme judges is almost 11%. But if it were divided into two courts — each with 14 judges, three of whom are extreme — that probability falls to 9%. A difference of 1% or 2% may not seem like much, but the 9th Circuit decides more than 6,000 cases every year. This means that if the 9th Circuit is anything like my hypothetical court, splitting it in half would save 60 to 120 appeals a year from being decided by panels with a majority of extreme judges.” Of course, as our colleague David Stras points out, the hypothetical only holds so long as all ‘extreme’ judges either are liberal or conservative – because on a panel including both an ‘extreme’ liberal and ‘extreme’ conservative, the ideologues presumably would cancel out one another. More, given the size of California, it would be all but impossible to split the 9th Circuit into two equally-sized courts (unless Congress opted to divide the state). But even making these assumptions, one still could not guarantee that the so-called ‘extreme’ judges would be distributed evenly between the new courts. Under Fitzpatrick’s example, it also is possible that four of the ‘extreme’ judges would be assigned to one circuit and two to the other; five to one and one to the other; or six to one and none to the other. We crunched the numbers taking those possibilities into account, and our calculations are available here (PDF file).

On Monday, the District of Columbia bar assembled six leading Supreme Court correspondents to review the recently competed term and discuss one of the more atypical jobs in Washington journalism. The panel consisted of Joan Biskupic of USA Today, Robert Barnes of the Washington Post, Tony Mauro of Legal Times and American Lawyer Media, Mark Sherman of the Associated Press and Stuart Taylor, Jr., of the National Journal and Newsweek. A link to the event is now available here on the C-SPAN web site (Real Player required), and brief recap follows below. (Click here to listen to a previous SCOTUSblog podcast with New York Times correspondent Linda Greenhouse, and here with Nina Totenberg of National Public Radio.) With little need for anonymous sources and few opportunities to interview the main subjects of their stories, Supreme Court reporters differ from much of the Beltway press corps. “So much of [the job] is reading,” said Barnes, who just completed his first term covering the Court, adding he now knows why Biskupic calls the job “reporting by highlighter.” Panelists explained that reporters must submit detailed interview requests through the public affairs office to officially interview the Justices. With the exception of Justice Souter, all Justices generally are willing to speak to the media – though not always on the record, panelists said. The limited access to the Justices is “part of the reason people stay on the beat a long time,” Barnes said. “It takes a long time to get to know these people.”

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