Touting the fact that it is overturned “75 percent of the time by the Supreme Court,” Fox News host Bill O'Reilly claimed on the June 5 edition of his nationally syndicated radio show that the U.S. Court of Appeals for the 9th Circuit is “the worst court in the world” and “the biggest activist court in the nation's history.” O'Reilly continued: “But you can't do anything, because California's a liberal state, and you're never gonna get a plurality to get those guys out.” In fact, as Media Matters for America has repeatedly noted, the 9th Circuit's reversal rate is consistent with the national average. Further, while it is not clear precisely what O'Reilly meant by “get[ting] a plurality to get those guys out,” the state of California has no authority “to get those guys out,” as the 9th Circuit is a federal court and its judges subject to removal only by Congress through the process of impeachment.

During its 2004-05 term (the latest completed Supreme Court term), the Supreme Court reversed 84 percent of the cases it chose to hear from appeals of 9th Circuit decisions, compared to a 73-percent average reversal rate for all circuit courts of appeals. Three circuits had a higher reversal rate, with the Supreme Court reversing all of the appeals it heard from the 1st, 2nd, and 10th circuits, although the low number of cases it heard from each of these three circuits -- four cases from the 1st Circuit, two from the 2nd Circuit and three from the 10th Circuit -- makes comparison difficult.

However, over the last three terms, the 9th Circuit's reversal rate has been similar to the national average. As Media Matters has documented (here, here, here, and here), the 9th Circuit's reversal rate of 76 percent during the 2003-04 Supreme Court term was virtually the same as the national average of 77 percent for all circuit courts. Likewise, the percentage of reversals -- 75 percent -- of 9th Circuit decisions for the 2002-03 Supreme Court term was almost the same as the national average of 73 percent for the total number of federal circuit court cases reviewed. For the 2001-02 term, the 9th Circuit's reversal rate was 76 percent while the national average was 78 percent. During the 1990s, however, the 9th Circuit's reversal rate did exceed the national average, most notably during the 1996-97 term, when the court's 95-percent reversal rate topped the national average of 71 percent and “earned the Western circuit its reputation as the nation's 'most reversed,' ” according to a July 3, 2004, article in The Sacramento Bee.

Supreme Court reversals rates in the 2004-05 term ranked by circuit are as follows:

Circuit

Cases taken

Cases reversed

Reversal rate

1st

4

4

100%

2nd

2

2

100%

10th

3

3

100%

9th

19

16

84%

3d

4

3

75%

8th

4

3

75%

5th

7

5

71%

4th

3

2

67%

6th

11

7

64%

7th

2

1

50%

11th

10

5

50%

Additionally, contrary to O'Reilly's suggestion that the state of California has some control over the removal of a 9th Circuit judge, the court is a federal appeals court over which the state of California has no jurisdiction. In order to remove a federal judge, the majority of the House of Representatives would have to vote for impeachment articles, a Senate trial would have to occur, and two-thirds of the Senate would have to then vote to convict and remove from office.

From the June 5 edition of Westwood One's The Radio Factor:

CALLER: OK. About the judges, you know, the Constitution does not appoint judges for life.

O'REILLY: Right.

CALLER: They (inaudible) to serve during good behavior. And bad behavior is like legislative on the bench, is bad behavior --

O'REILLY: Yeah, but it's objective. It's -- they didn't break any law, you can't impeach 'em. I couldn't even get that, those judges out in Vermont and Ohio who gave the child molesters, you know, unbelievably light sentences. You couldn't even do anything against them.

CALLER: Yes, but the Congress are the ones who impeach. And if they don't feel it's impossible then let's get new congressmen.

O'REILLY: Yeah. But you're right. I mean if you're angry -- but, look, you live out in California. You've got the worst court in the world out there. The 9th Circuit Court of Appeals in San Francisco, which is turned over 75 percent of the time by the Supreme Court. That's the biggest activist court in the nation's history. And --

CALLER: That'd be a good place to start, wouldn't it?

O'REILLY: But you can't do anything, because California's a liberal state. And you're never gonna get a plurality to get those guys out. You're never gonna do it.

CALLER: Well I can't do anything, but the Congress certainly can.

O'REILLY: But they won't, cause there's not enough of them to do it. There's not enough politicians in this country to boot the activist judges out, particularly in liberal states.

CALLER: Article in the local paper, you know, they wanna, want people to write in and tell them why they haven't voted or don't vote. And there's so many people who don't vote and when they don't vote, they lose their right of franchise.

O'REILLY: That's right. They lose their country. Not only that, they lose their country.