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Steve Vladeck @steve_vladeck
, 17 tweets, 7 min read Read on Twitter
1. With @realDonaldTrump once again going after the Ninth Circuit (Happy Thanksgiving, I guess??), here's a medium-sized #thread on each of the five independent factual inaccuracies, analytical problems, and/or outright lies at the heart of his judicial temper tantrum:
1. Let's start with the easiest and most obvious flaw: The actual decision that has set off this tirade was by a federal district judge in San Francisco, _not_ the Ninth Circuit. Especially if he's relying on reversal rates (more on that shortly), that's a pretty key distinction.
2. As for the decision itself, the Executive Order the district court put on hold purports to redefine eligibility for asylum in a manner that is squarely inconsistent with the text of the relevant statute, 8 U.S.C. § 1158.

Odds are that _any_ judge would've ruled the same way.
3. So this is not about judges "refusing to follow the Constitution," or substituting their own policy preferences for those of the political branches. Rather, it's about a federal judge holding that an Executive Order violates the plain language of a clear, unambiguous statute.
4. Now, let's turn to the attack on the Ninth Circuit itself.

Trump's claim that it's the appeals court most often reversed by #SCOTUS is categorically false, whether over the last two years, five years, or longer. In fact, that honor goes to the Third Circuit (NJ, PA, DE, VI).
5. As I've noted previously, over the past five Terms, three other circuits have been reversed in a higher percentage of the cases #SCOTUS has reviewed from those courts (the Third, Sixth, and Eleventh Circuits):

So here, @realDonaldTrump is just lying.
6. It's true, of course, that the Ninth Circuit has the most _total_ reversals, but that's because #SCOTUS _hears_ more cases from that appeals court than any other. It also has the most affirmances over the same time periods.

Why does #SCOTUS hear so many cases from that court?
7. Because it is, by far, the largest appeals court in the country, both geographically and by docket size. As these statistics show, far more cases were filed, decided, and remained pending in the Ninth Circuit last year than in any other appeals court:…
8. Some folks still insist that being reversed in 48/60 cases over five Terms is high. Keep in mind, though, that #SCOTUS chooses almost all of the cases it hears.

99.9% of lower-court rulings, _including_ those by the Ninth Circuit, are never reviewed by the Justices.
9. If we're measuring by total cases decided by the Ninth Circuit, then, the reversal rate is somewhere south of 0.1% (And other circuits are generally comparable.)

In a nutshell, #SCOTUS takes far too few cases to use its decisions for quantitative evaluations of the circuits.
10. Even qualitatively, the Ninth Circuit holds its own. #SCOTUS's first decision this Term resolved a 4-1 circuit split in favor of the outlier (the Ninth Circuit), and it did so unanimously.…
11. Some focus on immigration cases, pointing to the travel ban, in which #SCOTUS reversed the Ninth Circuit (it also reversed the Fourth Circuit, but whatever).

Even there, though, #SCOTUS also sided _with_ the Ninth Circuit in a major case last Term:…
12. As for judges, because of its size, the Ninth Circuit also has the most active judgeships (29). 16 of those 29 were appointed by Democratic Presidents. If/when President Trump fills the outstanding vacancies on that court, 13 of the judges would be appointed by Republicans.
13. By contrast, seven of the 11 active judges on the powerful D.C. Circuit were appointed by Democratic Presidents, compared to four (assuming President Trump successfully fills the vacancy created by Justice Kavanaugh's elevation) by Republicans.
14. To be sure, progressive plaintiffs often choose the Ninth Circuit, just as conservatives choose the Fifth. But that's not to get a "guaranteed result" so much as it is to try to take advantage of favorable precedents, something all good litigants do.
15. Just last Tuesday, for example, the Ninth Circuit refused to rehear en banc a troubling panel decision that courts can't decide through habeas petitions whether immigrant juveniles have a right to counsel in removal proceedings:…
16. In sum, @realDonaldTrump is wrong about which court he's mad at; why he lost this case; whether the Ninth Circuit is the "most reversed" in the country; whether it's full of "Obama judges"; and whether it produces "almost guaranteed" results.

Other than that, though...

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