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One of the major narratives to emerge from this Supreme Court term is that the Fifth Circuit has become a conservative bête noir. But is there any truth to it? In a recent essay for the National Law Journal, I dig into the data and conclude there is not.

In particular, I argue that, to assess a circuit’s reversal rate, we must control for the number of appeals a circuit decides. The Fifth Circuit decides a lot of appeals. Once we control for that, its reversal rate was decidedly middling.  It was reversed 0.950 times for every 1000 appeals it terminated or 1.537 times for every 1000 appeals it terminated after oral argument or submissions on the briefs. In the essay, I included a comparison chart on the former metric; here is a chart on the latter metric.  The real outlier last term was not the Fifth, but the Second!

 

In the essay, I referenced data I gathered for testimony before a 2017 hearing in the U.S. House of Representatives on whether Congress should split the Ninth Circuit.  That data showed that the Fifth Circuit was the least reversed circuit over the previous two decades when compared to the number of appeals each circuit terminated after oral argument or submission on the briefs.  This was the key chart:

It is true that the Fifth Circuit wasn’t at the bottom last term like it has been historically, but one term is not much data to hang our hats on.  Moreover, it’s nowhere near where the Ninth Circuit was when it was the liberal bête noir (but it is also true that the Supreme Court is taking fewer cases than it used to).