by Erik W. Scharf and Wayne R. Atkins
Both practitioners and their clients often confront decisions concerning whether and how to pursue remedies in Florida’s state and federal courts of appeal. The question often arises: “What are my chances?” Although no one can answer that in the abstract, and all cases are different, the related questions of how often anyone secures relief and how a given type of appeal tends to fare in different courts frequently arise. Similarly, once judges are assigned, questions often arise regarding their voting patterns. This article provides practitioners with an overview of the available statistical information, which sheds some light on these questions. This article focuses on the two federal appellate courts most of interest to Florida practitioners: the 11th Circuit and U.S. Supreme Court.
This article begins by reviewing basic statistics for the 11th Circuit, including caseload and reversal rates for various types of appeals. It also briefly compares the 11th Circuit on these metrics to the other circuits and nationwide averages. The article continues in the same vein for the U.S. Supreme Court, but adds some metrics applicable to that institution; for example, it looks at how often certiorari petitions are granted and the voting tendencies of particular justices. Finally, the article offers practitioners a broad overview of some of the more advanced statistical research currently circulating in academic literature. In particular, it offers a summary of a study authored by Cass Sunstein and his colleagues, which analyzes the effect of partisan politics on the federal circuit courts.
The 11th Circuit by the Numbers and in Contrast with Its Sister Circuits
The Administrative Office of the United States Courts compiles statistics from the various federal courts and publishes them to its website. These statistics provide a glimpse into the workings of the federal courts. Of particular relevance to this article are the statistics collected from the various U.S. courts of appeals, which can inform the judgment of both counsel and client in considering appellate options. Although this article provides direct links for the statistical tables as they exist at the time of publication, the more surefire way to access them is to go to the main website for the administrative office,1 click the “Statistics” tab near the top of the page, then click “Federal Judicial Caseload Statistics” in the toolbar on the side of the page, and finally click “Caseload Statistics 2011” — or the statistics for any other year — in the drop-down menu that appears.
Table B provides overall caseload statistics, broken down by circuit.2 The data provided is limited to Article III courts of appeal and does not include data for the federal circuit, which is broken down in a separate table.3 In 20104 the 11th Circuit had 6,699 filings. In 2011, the court had 6,290 filings. The termination numbers show that the court has been keeping up with its caseload: In 2010, 6,833 cases were terminated by the court and, in 2011, 6,279 cases were terminated. This is despite the fact that the 11th Circuit has the third-highest caseload out of the various courts of appeals. The Fifth Circuit had the second-largest caseload, with 7,217 filings in 2010 and 7,687 filings in 2011. The Ninth Circuit had the highest caseload with 12,327 filings in 2010 and 11,975 filings in 2011.
Table B-7 provides greater insight into the types of cases that comprise each circuit’s caseload.5 For the 12-month period ending March 31, 2011, the 11th Circuit had 3,680 civil cases and 1,501 criminal cases. The various categories in the table are too numerous to list in this article; however, Figure 1 (below) illustrates the top 10 types of civil proceedings most frequently seen by the 11th Circuit in the 12-month period ending March 31, 2011.
Interestingly, the Ninth Circuit had only 108 more criminal cases than the 11th Circuit, despite the Ninth Circuit having 2,717 more total cases. Out of the 11th Circuit’s 1,018 cases for this period in which the U.S. government was a defendant, 513 involved motions to vacate sentences. In addition, 2,237 of the 11th Circuit’s cases arose out of federal question jurisdiction, as opposed to 376 diversity jurisdiction cases. Drug offenses comprised 582 of the circuit’s 1,501 criminal cases.
Table B-5 breaks down the various reversal rates of the circuits.6 The reversal rates are derived from only those cases the court decided “on the merits.” According to the Administrative Office for the U.S. Courts, “[m]erit terminations are based on the rights and liabilities of the parties and a court’s power to hear and determine a case and differ from procedural terminations that are based on an administrative aspect of the appellate process.”7 The breakdown by circuit is illustrated in Figure 2.
Most relevant to Florida practitioners, the 11th Circuit decided 47.9 percent of its cases on the merits in the 12-month period ending March 31, 2011 — the third lowest decision-on-merit percentage of the circuits behind the Seventh and D.C. circuits, which are tied at 45.9 percent.8 For those cases decided on the merits, the 11th Circuit reversed 8.9 percent of the time. The highest reversal rate for this time period is held by the Seventh Circuit, which reversed 16.9 percent of its cases decided on the merits. The 11th Circuit reversed 5 percent of its criminal caseload during this time. It reversed 26.1 percent of its bankruptcy caseload — the highest bankruptcy reversal rate in the country for that time period. It reversed 11 percent of its administrative appeals.
No appeal can be purely reduced to statistics. But these numbers, at minimum, provide practitioners a sense of how any given appeal fits into the circuit’s caseload, and they reveal the fact that reversals are the exception, not the norm, by a wide margin.
The U.S. Supreme Court: Odds of Securing Review and What Happens in the Cases That Make the Cut
After losing on appeal, clients may express an interest in seeking U.S. Supreme Court review. This Court has particularly detailed statistics that are readily available to the public, which may help guide such a decision. Needless to say, the odds are long.
Every November, the Harvard Law Review publishes detailed statistics from the Supreme Court’s prior term.9 For its term beginning in October 2010, the Supreme Court received 7,868 petitions for review, and granted 90 or 1.1 percent of them.10 In addition to these 90 petitions, the Court summarily decided another 82 petitions.11 In cases in which certiorari review was granted, the Court reversed 55 percent, vacated 17.5 percent, and affirmed 27.5 percent — strongly suggesting that the underlying merits of a certiorari petition is a relevant factor in the Court’s decision to accept jurisdiction.12 Of the 7,868 petitions, the Court considered 6,250 in forma pauperis (IFP) petitions, and granted 14, or 0.2 percent, of them.13 Paid petitions fared much better. The Court considered 1,618 paid petitions, and granted 76, or 4.7 percent, of those.14
The Supreme Court’s treatment of IFP petitions has been a subject of academic speculation. As one law review student note points out: “Thirty years ago, IFP petitions were a priority of the Warren Court, with Chief Justice Warren instructing law clerks to act as the counsel of IFP petitioners. At that time, the Court reviewed as many as 5 percent of the IFP petitions that came to it.”15 Some academics have speculated that “the [j]ustices appear to consider [paid petitions] to be more important than in forma pauperis petitions.”16 But there may be an alternative reason:
First, the Court might assume that because the petitioner did not hire an attorney, the petitioner viewed the case as unimportant. If the petitioner viewed the case as unimportant, the [j]ustices might view the case as uncertworthy. Second, the pro se petitioner might file a petition involving a nonfederal issue, a petition seeking review of a factual finding, or a petition seeking review of a case-specific legal error, all matters that will not likely result in a grant of certiorari.17
Regardless of the reason, the Court accepts vastly more paid petitions than IFP petitions.
The Supreme Court has also seen a dramatic increase in its caseload. According to the Court’s website, in 1960, “2,313 cases were on the docket, and in 1945, only 1,460.”18 Today, the Court sees “more than 10,000 cases on the docket per [t]erm.”19 Some have speculated that the Supreme Court’s decision in Gideon v. Wainwright, 372 U.S. 335 (1963), may be a significant driving force behind the Court’s increased caseload.20 Justice Powell expressed this concern in a concurring opinion to a decision, which extended Gideon to certain misdemeanors:
The Court’s rule may well exacerbate delay and congestion in these courts. We are familiar with the common tactic of counsel of exhausting every possible legal avenue, often without due regard to its probable payoff. In some cases this may be the lawyer’s duty; in other cases it will be done for purposes of delay. The absence of direct economic impact on the client, plus the omnipresent ineffective-assistance-of-counsel claim, frequently produces a decision to litigate every issue.21
There are also statistics compiled about the particular justices. For the Court’s October 2010 term, Justice Scalia was the most prolific of the justices, writing a combined total of 28 majority, concurring, and dissenting opinions.22 Likely because she assumed office immediately prior to the beginning of that same term, Justice Kagan wrote the least, writing a combined total of 10 opinions.23 Chief Justice Roberts only wrote 11 opinions that term, with eight of those being majority opinions.24 Justice Kennedy wrote the most majority opinions at 11.25
Supreme Court statistics are further broken down by voting patterns of the individual justices. Justices Ginsburg and Kagan were the most likely to agree out of any combination of the justices.26 Justices Thomas and Ginsburg were the least likely to agree.27 There were 16 5-4 decisions during that term. Of those decisions: 1) the majority in 10 cases was comprised of Justices Roberts, Scalia, Kennedy, Thomas, and Alito; 2) the majority in four consisted of Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan; 3) one decision featured a majority of Justices Scalia, Thomas, Ginsburg, Sotomayor, and Kagan; and 4) the majority in another decision consisted of Justices Thomas, Ginsburg, Breyer, Sotomayor, and Kagan.28
One important conclusion from all of this is that Supreme Court review is a rare thing, especially if sought IFP.
Advanced Statistical Efforts to Study Federal Appellate Decisionmaking
Once you are on appeal, and particularly once you learn your panel of judges, statistical data may shed some light on the actual decisionmaking process. In particular, there are a number of articles studying the effect of political ideology on judicial decisionmaking. Of particular interest is an article that appeared in the University of Virginia Law Review written by Professors Cass Sunstein and David Schkade along with then-law student Lisa Ellman. In the article, the authors analyzed cases in areas of law they felt judges would be influenced by their ideological background: “abortion, affirmative action, campaign finance, capital punishment, Commerce Clause challenges to congressional enactments, the Contracts Clause, criminal appeals, disability discrimination, industry challenges to environmental regulation, piercing the corporate veil, race discrimination, sex discrimination, and claimed takings of private property without just compensation.”29 They focused on published opinions because, “[a]s a general rule, unpublished opinions are widely agreed to be simple and straightforward and to involve no difficult or complex issues of law.”30
The authors found “that the votes of judges are influenced by the party affiliation of the other two judges on the same panel.”31 More specifically, “[f]or both Democratic appointees and Republican appointees, the likelihood of a liberal vote jumps when the two other panel members are Democratic appointees, and it drops when the two other panel members are Republican appointees.”32 The authors also noted the effects of having a panel in which all three judges come from the same ideological background: “The clearest point is a sharp spread between the average outcome in an all-Republican panel and that in an all-Democratic panel. Indeed, the likelihood of a liberal outcome is roughly twice as high with the latter as with the former.”33
Although Cass Sunstein and his colleagues seem to attribute this effect to a natural desire for collegiality among the panel members, another article found evidence to suggest that it could be the result of a somewhat more formal version of collegiality — bargaining to obtain votes.34
First, Cass Sunstein and his colleagues analyzed affirmative action cases. Apparently, “isolated Democratic appointees are actually slightly less likely to vote for affirmative action programs than are isolated Republican appointees, who vote in favor 65% of the time.”35 “On all-Republican panels, individual Republican appointees vote for affirmative action programs only 37% of the time — but 49% of the time when Republican appointees hold a two-to-one majority.”36 “On all-Democratic panels, individual Democratic appointees vote in favor of the plan 82% of the time, compared to 80% with a two-judge Democratic majority.”37
“In sex discrimination cases from 1995 to the present, Republican appointees voted in favor of plaintiffs 35% of the time, whereas Democratic appointees voted for plaintiffs 51% of the time.”38 “When in the minority, Republican appointees vote in favor of sex discrimination plaintiffs 42% of the time, identical to the 42% rate of Democratic appointees when they are in the minority.”39 When three Democratic appointees are on a panel together, 75 percent of them favor plaintiffs, which is “far higher than the rates of 50% or less when Democratic appointees sit with one or more Republican appointees.”40 “On all-Republican panels, Republican appointees vote at a strongly anti-plaintiff rate, with only 31% favoring plaintiffs; this rate increases steadily with each Democrat on a panel.”41
The article provides many more interesting findings in various areas of law that are beyond the scope and space of this article to detail. However, it is worth noting that there were certain areas of law in which the effect of an appointing president’s political party on a judge’s decisionmaking was unexpectedly less pronounced. According to the article, “[c]ontrary to expectations, the political affiliation of the appointing president does not matter in the contexts of criminal appeals, federalism, and takings.”42 The authors speculated on two possible explanations for this. “The first explanation is that the law (as elaborated by the Supreme Court or by previous appellate decisions) is clear and binding, and hence ideological disagreements cannot materialize.”43 “The second possibility is that even if the doctrine does allow courts room to maneuver, appointees of different parties do not much disagree about the appropriate principles.”44 They also noted that criminal appeals may be unique because “criminal defendants will appeal even when there is no indeterminacy, because (with very rare exceptions) they are not paying for the appeal.”45
This trend seems to disappear at the trial court level. After examining a large number of civil rights cases at the district court level, Orley Ashenfelter, a professor of economics at Princeton, as well as Cornell Law Professors Theodore Eisenberg and Stewart J. Schwab, found that the political background had little effect.46 However, that same study found a “modest effect” flowed from the religion and gender of the judges.47
Judge Harry T. Edwards of the D.C. Circuit has been a staunch critic of literature that he feels “seem[s] determined to characterize judges as knee-jerk ideologues, who act pursuant to a blind adherence to ideological precepts and decide cases wholly without regard to the law.”48 Judge Edwards emphasizes that courts really do decide cases based on established principles of law, rather than personal politics.49 Although likely disagreeing with Cass Sunstein on the effect of the individual judge’s political background, Judge Edwards seems to confirm Cass Sunstein and his colleagues’ view that collegiality is the driving force behind any “moderating effect” among a panel containing judges from different political backgrounds. As Judge Edwards has explained: “My own view is that if panel composition turns out to have a ‘moderating’ effect on judges’ voting behavior, this is a sign that panel members are behaving collegially: that is, they are discussing the case with each other and reaching a mutually acceptable judgment based on their shared sense of the proper outcome.”50
By aggregating some of the more interesting statistics for the federal courts of appeal, this article should help practitioners to understand better these courts and the chances of prevailing on appeal. Whether one is defying the odds or just trying to explain them to clients, it always helps to have the most accurate picture possible.
1 United States Court, Administrative Office of United States Courts, http://www.uscourts.gov/FederalCourts/UnderstandingtheFederalCourts/AdministrativeOffice.aspx.
2 United States Courts, Table B, U.S. Courts of Appeals — Appeals Commenced, Terminated, and Pending During the 12-month Periods Ending March 31, 2010 and 2011, available at http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/Statistics/FederalJudicialCaseload/2011/tables/B00Mar11.pdf.
3 United States Courts, Table B-8, U.S. Court of Appeals for the Federal Circuit — Appeals Filed, Terminated, and Pending During the 12-month Period Ending March 31, 2011, available at http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/Statistics/FederalJudicialCaseloadStatistics/2011/tables/B08Mar11.pdf (providing data for the Federal Circuit).
4 The statistics are compiled March 31 of each year. Thus, “2010” refers to April 1, 2009, through March 31, 2010.
5 United States Courts, Table B-7, U.S. Courts of Appeals — Nature of Suit or Offense in Cases Arising From the U.S. District Courts, by Circuit, During the 12-month Period Ending March 31, 2011, available at http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/Statistics/FederalJudicialCaseloadStatistics/2011/tables/B07Mar11.pdf.
6 United States Courts, Table B-5, U.S. Courts of Appeals — Appeals Terminated on the Merits, by Circuit, During the 12-month Period Ending March 31, 2011, available at http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/Statistics/FederalJudicialCaseload/2011/tables/B05Mar11.pdf.
7 This quote is drawn from an email the authors of this article received from the administrative office on May 31, 2012.
8 Technically, the D.C. Circuit is the lowest, but its approximate .06 percent lead is not apparent from the rounding system employed by the administrative office in calculating percentages.
9 The Statistics, 125 Harv. L. R. 362 (Nov. 2011).
10 Id. at 369.
11 Id. at 370.
12 See id.
13 Id. at 369.
15 Cristina Lane, Pay Up or Shut Up: The Supreme Court’s Prospective Denial of In Forma Pauperis Petitions, 98 Nw. U. L. Rev. 335, 343-44 (2003).
16 Kevin H. Smith, Certiorari and the Supreme Court Agenda: An Empirical Analysis, 54 Okla. L. Rev. 727, 732-33 (citing Lawrence Baum, The Supreme Court 99 (4th ed. 1992)).
17 Id. at 755.
18 Supreme Court of the United States, The Justices’ Caseload, http://www.supremecourt.gov/about/justicecaseload.aspx.
20 Hannah Stewart, Why Does the Supereme Court Hear Fewer Cases than Before?, http://voices.yahoo.com/why-does-supreme-court-hear-fewer-6880392.html?cat=17.
21 Argersinger v. Hamlin, 407 U.S. 25, 58 (1972) (Powell, J., concurring in result).
22 The Statistics, 125 Harv. L. R. at 362.
26 Id. at 365.
28 Id. at 368.
29 Cass R. Sunstein, et al., Ideological Voting on Federal Courts of Appeal: A Preliminary Investigation, 90 Va. L. Rev. 301, 304 (2004).
30 Id. at 313.
31 Id. at 315.
32 Id. at 316-17.
33 Id. at 315.
34 Stephen J. Choi & G. Mitu Gulati, Trading Votes for Reasoning: Covering in Judicial Opinions, 81 S. Cal. L. Rev. 735, 772 (2008)
35 Sunstein, Idealogical Voting at 319.
39 Id. at 320.
42 Id. at 325.
43 Id. at 334.
45 Id. at 334-35.
46 Orley Ashenfelter, et al., Politics and the Judiciary: The Influence of Judicial Background on Case Outcomes, 24 J. Legal Stud. 257, 281 (1995).
48 Harry T. Edwards, Public Misperceptions Concerning the “Politics” of Judging: Dispelling Some Myths About the D.C. Circuit, 56 U. Colo. L. Rev. 619, 625 (1985).
49 Id. at 620-21.
50 Harry T. Edwards, Collegiality and Decision Making on the D.C. Circuit, 84 Va. L. Rev. 1335, 1358 (1998).
Erik W. Scharf, of Coconut Grove, is a former federal law clerk and board-certified appellate specialist.
Wayne R. Atkins is a 2010 graduate of the University of Miami School of Law, and is an associate at Erik W. Scharf, P.A.
This column is submitted on behalf of the the Appellate Practice Section, Jack R. Reiter, chair; Brandon Christian, editor, and Chris McAdams and Kristi Rothell, assistant editors.