Does Three Do the Trick in the Ninth? The Liberal Ninth Circuit – Myth or Fact: How the Three Judge Panel, And A System of Published and Unpublished Opinions Interact with Political Appointments in the Ninth Circuit

Rachel N. Agress

Abstract

This article examines the persistent view that the Ninth Circuit is “overly liberal,” and attempts to evaluate this outlook in light of data collected regarding two variables. The first variable is the composition of individual political orientations of judges on the Ninth Circuit as compared to the political composition of other circuit courts. To achieve this comparison, this paper looks at political appointments and classified judges as “liberal” or “conservative,” based on political appointment by a Democratic or Republican president. Further, this article delineates the current percentage of “liberal” versus “conservative” judges in each circuit, comparing the average circuit court composition to the political composition of the Ninth Circuit. In light of the data collected, this article argues that the Ninth Circuit, though liberal compared to other circuits, is not as notoriously “liberal” as it is alleged to be. Therefore the composition of the court, objectively, is relatively mixed. The second variable examined is the relationship between the political composition of a panel and the type of opinion issued (published versus unpublished opinions, unanimous versus opinions or memorandums with dissents or concurrences). In particular, this article examines whether a mixed panel (comprised of both liberal and conservative judges) is less likely to reach a unanimous opinion, and the political characteristics of dissenters in relation to the political composition of the panel issuing the majority opinion or memorandum. As a sample group of cases, this article examined written decisions issued by the Ninth Circuit over the last three months of the 2010 calendar year (October 1, 2010 through December 31, 2010).