Tony Mauro has this story on law.com regarding the controversy over SCOTUS nominee Sonia Sotomayor's "reversal rate" in cases that have gone to the Supreme Court: 4 out of 5 on the reasoning, but 3 out of 5 on the judgment. As we have noted previously on this blog (and as the story notes), the rate of reversal of cases taken up doesn't say much because of sampling bias. They only take 1% of the cases they are asked to take, and they are much more likely to take cases a majority thinks are wrong.
As also noted previously, unanimous and summary reversals are more of an indication of a problem. The summary reversal is the most severe slap. That is where the Supreme Court reverses the lower court decision on the certiorari petition alone, without merits briefs or oral argument. Such a reversal usually indicates that the Court believes the lower court decision is clearly wrong on existing law, without the need to plow any new ground.
The five Supreme Court cases in question include no summary reversals, one unanimous reversal, and one decision affirming the judgment while unanimously rejecting the reasoning.
As also noted previously, unanimous and summary reversals are more of an indication of a problem. The summary reversal is the most severe slap. That is where the Supreme Court reverses the lower court decision on the certiorari petition alone, without merits briefs or oral argument. Such a reversal usually indicates that the Court believes the lower court decision is clearly wrong on existing law, without the need to plow any new ground.
The five Supreme Court cases in question include no summary reversals, one unanimous reversal, and one decision affirming the judgment while unanimously rejecting the reasoning.
Here are the cases for those who wish to actually read them (unlike Senator Reid) and make their own judgments.
Only one of the five cases is in an area of law I can claim to be familiar with. Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001), reversing 229 F.3d 374, was a 5-4 decision involving an action under the Supreme Court precedent of Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). In the Bivens case, the Supreme Court boldly, some would say illegitimately, created a cause of action against federal agents for civil rights violations, even though Congress has created such a cause of action only against those acting under color of state law in 42 U.S.C. ยง 1983. Does this doctrine extend to privately operated prisons under federal contract? It was a close question, as indicated by the 5-4 vote and as Justice Scalia sums up in his concurrence:
Knight v. Commissioner, 169 L.Ed.2d 652 (2008), affirming 467 F.3d 149, is a dreaded tax case*, having to do with when certain expenses incurred by a trust are subject to the same 2% floor on deductions the rest of us are stuck with. Trusts get a break from this limit, Congress says, for administration costs "which would not have been incurred if the property were not held in such trust or estate...." Judge Sotomayor wrote for the Second Circuit that investment advisory fees were "costs of a type that could be incurred if the property were held individually rather than in trust..." and so were subject to the floor. But the statute doesn't say "could," said the unanimous SCOTUS, it says "would." They went on to affirm the conclusion, though, that the fees are subject to the floor.
Empire HealthChoice Assurance, Inc. v. McVeigh, 547 U.S. 677 (2006), affirming 396 F.3d 136, is a 5-4 decision on jurisdiction to hear a health plan's claim to recoup medical expenses when the patient gets a judgment for them.
New York Times Co. v. Tasini, 533 U.S. 483 (2001) is a 7-2 reversal on a copyright issue involving putting writers' previously published works in Nexis.
So, are these reversals cause for concern? Well, maybe, but rhetoric about a high "reversal rate" is much overblown. I will be very interested in watching the confirmation hearings and seeing how forthcoming she is on areas where she has no track record.
* Justice Souter, whom Judge Sotomayor is nominated to succeed, was once asked by his clerks if he intended to participate in the Christmas sing-along, a favorite activity of the late Chief Justice Rehnquist. He responded, deadpan, that he had to. Otherwise, he would be assigned all the tax cases. Chief Justice Roberts assigned Knight to himself.
Only one of the five cases is in an area of law I can claim to be familiar with. Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001), reversing 229 F.3d 374, was a 5-4 decision involving an action under the Supreme Court precedent of Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). In the Bivens case, the Supreme Court boldly, some would say illegitimately, created a cause of action against federal agents for civil rights violations, even though Congress has created such a cause of action only against those acting under color of state law in 42 U.S.C. ยง 1983. Does this doctrine extend to privately operated prisons under federal contract? It was a close question, as indicated by the 5-4 vote and as Justice Scalia sums up in his concurrence:
I join the opinion of the Court because I agree that a narrow interpretation of the rationale of Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), would not logically produce its application to the circumstances of this case. The dissent is doubtless correct that a broad interpretation of its rationale would logically produce such application, but I am not inclined (and the Court has not been inclined) to construe Bivens broadly.Merrill Lynch v. Dabit, 547 U.S. 1 (2006), reversing 395 F.3d 25, is an 8-0 reversal by Justice Stevens. It has to do with preemption of state-law stock-fraud claims by the Securities Litigation Uniform Standards Act.
In this case the Second Circuit held that SLUSA only pre-empts state-law class-action claims brought by plaintiffs who have a private remedy under federal law. 395 F. 3d 25 (2005). A few months later, the Seventh Circuit ruled to the contrary, holding that the statute also pre-empts state-law class-action claims forwhich federal law provides no private remedy. Kircher v. Putnam Funds Trust, 403 F. 3d 478 (2005). The background, the text, and the purpose of SLUSA's pre-emption provision all support the broader interpretation adopted by the Seventh Circuit.This isn't my field, but it does appear that Judge Sotomayor stretched pretty far to avoid finding preemption.
Knight v. Commissioner, 169 L.Ed.2d 652 (2008), affirming 467 F.3d 149, is a dreaded tax case*, having to do with when certain expenses incurred by a trust are subject to the same 2% floor on deductions the rest of us are stuck with. Trusts get a break from this limit, Congress says, for administration costs "which would not have been incurred if the property were not held in such trust or estate...." Judge Sotomayor wrote for the Second Circuit that investment advisory fees were "costs of a type that could be incurred if the property were held individually rather than in trust..." and so were subject to the floor. But the statute doesn't say "could," said the unanimous SCOTUS, it says "would." They went on to affirm the conclusion, though, that the fees are subject to the floor.
Empire HealthChoice Assurance, Inc. v. McVeigh, 547 U.S. 677 (2006), affirming 396 F.3d 136, is a 5-4 decision on jurisdiction to hear a health plan's claim to recoup medical expenses when the patient gets a judgment for them.
New York Times Co. v. Tasini, 533 U.S. 483 (2001) is a 7-2 reversal on a copyright issue involving putting writers' previously published works in Nexis.
So, are these reversals cause for concern? Well, maybe, but rhetoric about a high "reversal rate" is much overblown. I will be very interested in watching the confirmation hearings and seeing how forthcoming she is on areas where she has no track record.
* Justice Souter, whom Judge Sotomayor is nominated to succeed, was once asked by his clerks if he intended to participate in the Christmas sing-along, a favorite activity of the late Chief Justice Rehnquist. He responded, deadpan, that he had to. Otherwise, he would be assigned all the tax cases. Chief Justice Roberts assigned Knight to himself.
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