COURT THAT RULED ON PLEDGE OFTEN RUNS AFOUL OF JUSTICES

Over the last 20 years, the Court of Appeals for the Ninth Circuit has
developed a reputation for being wrong more often than any other federal
appeals court.

In recent years, in cases involving medical marijuana, assisted suicide,
disabilities and more mundane issues, dozens of the court's decisions have
been reversed unanimously by the Supreme Court.

"In the 1996 term, for example, the Ninth Circuit was reversed in at least
24 cases - a staggering number - and at least 16 of them were 9-0
reversals," Akhil Amar, a law professor at Yale, wrote in an online
commentary. "When you're not picking up the votes of anyone on the court,
something is screwy."

The Ninth Circuit may be facing yet another reversal. On Wednesday, it
touched off an avalanche of criticism by pronouncing the Pledge of
Allegiance unconstitutional.

While the court is famously liberal, critics attribute its record in the
Supreme Court more to its unwieldy size than to ideology.

It is by far the largest federal appeals court. At full strength, it has 28
judges, almost twice as many as the next biggest circuit. Its decisions
affect a fifth of the nation's population and a third of its land, in nine
states and two territories.

Of the court's 23 active judges, 17 were appointed by Democratic
presidents. That makes it "vastly more liberal than most other courts of
appeals, and certainly the Supreme Court," said Eugene Volokh, a law
professor at the University of California in Los Angeles.

But Mark A. Perry, an appellate lawyer in Washington who was a clerk for a
Ninth Circuit judge, said ideology does not account for the court's track
record. "Size gives rise to conflict and confusion," he said. "There is no
consistency."

Richard A. Posner, a federal appeals court judge in Chicago, devoted a law
review article to proving statistically that the Ninth Circuit's size
predisposes it to "judicial irresponsibility." When a former chief judge of
the court, joined by three of his predecessors, including the author of the
Pledge of Allegiance decision, took issue with a similar statistical
analysis in 1998, Justice Antonin Scalia of the Supreme Court was incredulous.

"There is," Justice Scalia wrote, "no doubt that the Ninth Circuit has a
singularly (and, I had thought, notoriously) poor record on appeal. That
this is unknown to its chief judges may be yet another sign of an
unmanageably oversized circuit."

The court's size has led to periodic calls for dividing it. In 1997,
Congress created a commission to consider the issue. Its chairman was Byron
R. White, who had retired from the Supreme Court a few years before.

The records of the White Commission include frank discussions by Supreme
Court and Ninth Circuit judges of the court's shortcomings.

For instance, judges on the court said they did not have time to read all
of the decisions it issued.

According to the commission's 1998 report, 57 percent of judges in the
Ninth Circuit, compared with 86 percent of federal appeals court judges
elsewhere, said they read most or all of their court's decisions.

"The Ninth Circuit issues too many decisions for anyone to read," wrote
Judge Andrew J. Kleinfeld, who was appointed by the first President George
Bush. "Judges on the same court should read each other's decisions. We are
so big that we cannot and do not."

"Put bluntly," wrote Judge Diarmuid F. O'Scannlain, who was appointed by
President Ronald Reagan, "it becomes difficult to know what our circuit's
law is."

The court's chief judge, Mary M. Schroeder, who was appointed by President
Jimmy Carter, defended it in an interview. "We have evaluated and we have
studied," she said, "and we have not been able to document issues that are
directly attributable to the size of the court."

In his study, Judge Posner considered how often the Supreme Court had
reversed the Ninth Circuit in a way that suggested simple error by the
lower court, as opposed to a principled disagreement on a knotty legal
question.

Sometimes the Supreme Court reverses lower courts summarily. This means,
Judge Posner wrote, that the lower court "got the issue so clearly wrong
that there is no need for the illumination of the issues that briefing and
argument would afford."

Other times, the Supreme Court reverses unanimously. That means, Judge
Posner wrote, that the decision was "more likely to be just plain
incorrect, rather than being merely the reflection of political difference."

By both measures, the Ninth Circuit was wrong more often than any other
circuit in the dozen years Judge Posner surveyed, though 1997.

Judge Posner concluded that "problems of quality control indeed increase
with the size of the circuit."

The White Commission recommended that the Ninth Circuit be divided into
largely autonomous divisions. Legislation along those lines was proposed
but not adopted.

The Ninth Circuit covers Alaska, Arizona, California, Hawaii, Idaho,
Montana, Nevada, Oregon and Washington, along with Guam and the Northern
Mariana Islands.

The judges have chambers throughout the circuit and meet only rarely.
Assuming 28 judges, there are more than 3,000 possible combinations of
three-judge panels. But the active judges rely heavily on more than 20
senior judges, and panels often also contain visiting judges.

The court's reversal rate has improved in recent years, said Erwin
Chemerinsky, a law professor at the University of Southern California. In
the term that just concluded, the Supreme Court affirmed 4 of 18 Ninth
Circuit decisions, which is in line with rates for other circuits. Six of
the reversals were unanimous, which is not.

Two of the unanimously reversed decisions were written by Judge Stephen
Reinhardt, a Carter appointee who was in the majority in the Pledge of
Allegiance decision. A third opinion by Judge Reinhardt was affirmed.

Professor Chemerinsky cautioned that it was possible to read too much into
reversal rates. "The opinions written by conservatives on the Ninth Circuit
are just as likely to be overturned as opinions by liberals," he said.
"When you're dealing with hard questions, a reversal rate does not mean the
court of appeals was wrong and the Supreme Court was right. It means the
Supreme Court got the last word."

Critics say the Ninth Circuit's procedure for full-court review accounts
for much of the reversal rate. All other circuits sit as one to hear
full-court, or en banc, cases. The Ninth Circuit sits in panels of 11.

The procedure injects randomness into decisions. If a case is decided 6 to
5, there is no reason to think it represents the views of the majority of
the court's 23 active members.

"If you run a judicial process as a crap shoot," Judge Kleinfeld wrote,
"the crap shooter's principles will affect the outcomes."

In 1998, Justice Sandra Day O'Connor complained that the Ninth Circuit did
not use even this flawed procedure enough. She wrote that the court had
heard only 8 of 4,481 cases en banc in the previous year. In that time, the
Supreme Court addressed 45 cases from the Ninth Circuit.

That has since changed.

"The Ninth Circuit is now more likely to grant en banc review than any
other circuit," said Tracey George, a law professor at Northwestern
University. She said it now reviews just over one percent of panel
decisions; the average in other circuits is about seven-tenths of one percent.

Judge Reinhardt said this has not improved its reversal record.

"Justice O'Connor said we should go en banc more," he said, "and then they
give us higher reversal rates on en banc decisions."

Still, so few decisions are reviewed by the Supreme Court or an en banc
panel that some judges may feel free to ignore precedent without
significant fear of reversal.

In the Ninth Circuit, Judge Posner wrote, "a three-judge panel that decides
to defy circuit precedent or otherwise go out on a thin limb has a
reasonable prospect of getting away with it."

Professor Amar wrote that judges on the Ninth Circuit rule "a little like
how some taxpayers play the audit lottery, taking self-serving positions on
their returns while hoping not to get audited."