My Scotus scorecard missed the shadows


Photo by Hans / CC0 / Pixabay

Earlier this week I posted about how CA3 has fared lately in the Supreme Court. Nothing fancy, I just looked at CA3 cert-grants and reversal rates and how they compare to other circuits. As I said in my post, I just pulled these stats from Scotusblog, I even said it was “easy.”

Not so fast.

The sort of simple reversal-rate analysis I gave is misleading, argue John Summers and Michael Newman of Hangley Aronchick.* The Supreme Court resolves circuit splits; every time they do, they’re passing judgment on each circuit in the split, not just the one from which cert was granted. Summers & Newman call these ‘shadow decisions.’

To illustrate: imagine a circuit split with CA4 and CA5 on one side, CA9 on the other. Suppose Scotus grants cert from the CA5 case and affirms. Using simple analysis, only CA5 gets scored. Summers and Newman argue that CA4 and CA9 — the shadow-decision circuits — should, too. I agree.

Summers & Newman explained their method and findings on Scotusblog in 2012, here, and on Hangley’s Supreme Court Project page, here. And, of particular interest to me, they had a great short article in Legal Intelligencer in 2011 focusing on CA3, here. Applying their method to the 2005-10 terms, they found that CA3 had the lowest reversal rate of any circuit.

So now I’m eager to figure out how CA3 has done in shadow decisions since the 2010 term. And to find out more about the Hangley Scotus project. Stay tuned.

*  Howard Bashman used the same methodology back in 2006 (Report Card here) to score CA3 in the OT 2005 term. No idea who first had the idea. Summers & Newman are the ones spreading the gospel now.