Jose Luis Villegas
Jose Luis Villegas

Editorials

Donald Trump should check his facts before attacking the 9th Circuit

By the Editorial Board

August 07, 2017 05:20 PM

UPDATED August 08, 2017 11:06 AM

President Donald Trump's call for dismantling the U.S. 9th Circuit Court of Appeals is, like so many of his demands, based on a misunderstanding of reality.

The 9th Circuit is not the nation’s most reversed appellate court, as president implies. But such facts are beside the point. Courts make decisions based on their reading of the Constitution, statutes and precedent. As was reported by The Sacramento Bee Monday, 9th Circuit Court decisions are hardly outside the mainstream.

There was, for example, the sad case of Carol Sachs, a Berkeley woman whose legs were amputated after she was run over by a train in Austria. Sachs’ lawyer filed the suit in federal court in San Francisco rather than Austria, clearly a gamble.

The attorney relied on decisions, rendered by circuit courts elsewhere in the country, suggesting Sachs had the right to sue in the United States. She had purchased her EuroRail ticket from a U.S. vendor, the story by Andy Furillo notes.

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A trial judge rejected Sachs’ case, saying the suit should have been filed in Austria. The 9th Circuit reversed that decision. The appellate court was taking an expansive view of the right to sue, but the conclusion was hardly beyond the pale. Commerce knows few borders in the age of the internet.

The U.S. Supreme Court, as is its right, overruled that decision by a 9-0 margin. But one reversal or even eight is hardly cause to break up the circuit court.

In 2015, the Supreme Court reviewed 11 decisions by the 9th Circuit and reversed eight. A record of three cases upheld and eight reversals might seem large.

It was enough for Trump to attack the San Francisco-based court in February and again in April after its decision overturning the administration’s initial travel ban against seven Muslim-majority countries.

“I have heard 80 percent,” Trump said on Feb. 17, quoting a figure that roughly covers the circuit’s reversal rate from 2010-15. “I find that hard to believe. That is just a number I heard, that they are overturned 80 percent of the time. I think that circuit is – that circuit is in chaos and that circuit is frankly in turmoil.”

Whether intentionally or not, the president overlooked fundamental facts. The 9th Circuit had a caseload of nearly 12,000 cases in 2015. Basic math would suggest that the appellate court was reversed less than .0007 of the time in 2015.

The 9th Circuit handled 11,305 matters in 2016. The Supreme Court reviewed eight of those cases and reversed seven of them, hardly an indication of a court in chaos and turmoil.

The high court reviewed 103 9th Circuit cases between 2010 and 2015, and reversed 79 percent of them. That’s above the 70 reversal rate for all circuit courts, but less than the 85 percent in the Atlanta-based 11th Circuit and the 87 percent in the Ohio-based 6th Circuit. The 9th Circuit Court should not be broken up, any more than the 6th or 11th or any of the other courts of appeal should be dismantled. It certainly should not be broken up based on one of Trump’s moments of pique.

We don’t liken Trump to Venezuelan strongman Nicolás Maduro. But Maduro, like other authoritarians, consolidated his power by attacking the independence of the judiciary.

Surely, Trump is not contemplating a similar step. And, we trust, the House and Senate would not countenance it.

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