The Home Court Advantage?

Lee Epstein

In an article on the Uttecht death penalty case, Linda Greenhouse highlighted Justice Stevens' dissent, which made an "unmistakable reference" to the "special relationship" between Justice Kennedy and Judge Kozinski. Now a judge on the Ninth Circuit, Kozinski served as a law clerk to Kennedy when the justice was on the Ninth. Because Kennedy, writing for the Court, reversed Kozinski, it seems possible that Stevens was attempting to persuade Kennedy to vote the other way. But Ms. Greenhouse suggests that the reference was less about persuasion than about frustration on the part of the Court's left wing.

Then again, perhaps Justice Stevens was on to something.

A preliminary statistical analysis I conducted with Jeff Segal shows that, overall, former federal appellate court judges on the U.S. Supreme Court are more likely to affirm decisions from their own circuit than from all others. Take Antonin Scalia. Looking across all 1,587 decisions coming out of the U.S. courts of appeals since he joined the Court in 1986, Justice Scalia affirmed about 40 percent and reversed 60 percent. The figures for the D.C. Circuit, where he served between 1982-1986? Nearly the mirror image: 56 percent affirmed and 44 percent reversed. Likewise, over the course of his career Thurgood Marshall reversed federal appellate court decisions about as often as he affirmed them—except when it came to his former court, the Second Circuit. He affirmed better than 6 out of every 10 cases from the Second (162/254, or 63.8 percent).

The relationship holds even after taking into account the ideological direction of the appellate court's decision. If the First Circuit were to reach a decision favoring, say, the defendant in a criminal case or a plaintiff in an employment discrimination suit, the odds are quite high that Justice Breyer—former member of that court—would vote to affirm (about .77). If a similar case were to come from another circuit, odds are that he'd reverse (about .58). Clarence Thomas evinces the same behavioral pattern. He is far more likely to affirm the D.C. Circuit, compared to other circuits, even after controlling for whether it issues a conservative or liberal decision.

More generally, over half the former circuit judges serving since 1953 show a statistically significant tendency to favor their home court. They range from the Eisenhower appointees Harlan and Whittaker to Clinton's two picks, Breyer and Ginsburg. And they run the ideological gamut from Marshall to Thomas.

The list does exclude Justice Alito and Chief Justice Roberts. They have not served long enough for meaningful analysis. It also excludes Chief Justice Burger, who was significantly more likely to reverse the D.C. Court of Appeals, where he had a famously poor relationship with Judge Bazelon.

Finally and interestingly enough, it excludes Justice Kennedy, who—like Burger—turns out to be rather anomalous. Even after taking into account whether the Ninth Circuit reached a liberal or conservative decision, Kennedy tends to reverse his former court. Were the defendant to prevail in a Ninth Circuit decision, as in Uttecht, Kennedy would be more likely to reverse than if the decision came from any other circuit! (For the Ninth, a .78 probability of reversal; for all others, .66.)

So Ms. Greenhouse probably got it right after all. If the past is any indication, Justice Kennedy shows little favoritism toward his former court. Based on our preliminary analysis, however, we cannot at this point say the same of some of his colleagues, past and present.
Posted 9:21 AM by Lee Epstein [link]