Wednesday, June 3, 2009


In the early years after I got out of law school, I worked as a law clerk ("staff attorney" is another term for the job) for a federal judge in Texas and then for all the judges in the General Division of the Lucas County Court of Common Pleas in Ohio. In those jobs I did research, gave advice, and drafted opinions which the judges eventually signed (sometimes after editing them, sometimes not). One of the things I learned is that some judges really hate, really really really hate getting reversed.

It always seemed odd to me. A reversal doesn't mean, on its face, that the judge was seriously wrong. It just means that at least two out of three judges slightly higher up the judicial food chain came to a different conclusion. It always seemed odd to me to take it personally since being reversed goes with the territory of being a judge. If you're not prepared to be reversed, don't become a judge. This was the wisdom of Justice Jackson concurring in Brown v. Allen:
Whenever decisions of one court are reviewed by another, a percentage of them are reversed. That reflects a difference in outlook normally found between personnel comprising different courts. However, reversal by a higher court is not proof that justice is thereby better done. There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final.
All of this is relevant only because, as this article on from the National Law Journal points out, Judge Sotomayor is being attacked as stupid or incompetent or hopelessly misguided or something because of the five cases in which she has written opinions that the Supreme Court reviewed, it reversed her three times. That's a 60% reversal rate.


Well, not really. The article also notes that Sotomayor has written 232 opinions as an appellate judge. So another way of counting is to say that she has a reversal rate of 1.29%, which seems pretty low. Or you might note that then-Judge-now-Justice Alito's reversal rate was 100% when he was nominated. Or that the Supreme Court reverses about 75% of the time when it agrees to hear cases. Does all that mean that she's actually ahead of the curve?

Nope. The basic fact is that Justice Jackson was right and none of this means anything.

There are good judges and bad ones. There are a small number of cases where a trial judge's reversal rate is so high that it suggests an unwillingness to follow settled law, though the rate would have to be extraordinarily high really to suggest that. But the reversal rate of an appellate judge by a court of discretionary jurisdiction is, truly, meaningless.

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