Last term, SCOTUSBlog ceased to publish its reliable StatPack. I am pleased that Adam Feldman and Jake Truscott have published a Stat Review of OT 2023. You should read through the rich 68-page report in detail. Here, I'd like to tease out one datapoint.
Which Circuit had the highest reversal rate? Surely it must be the Fifth Circuit, right? No. It was the Second Circuit. The Second Circuit's reversal rate was 85.71%. And for those keeping track at home, all but one were unanimous, 9-0 reversals: Murray v. UBS, Macquarie, Bissonette, Cantero, and NRA v. Vullo.
For the Fifth Circuit, if we include consolidated cases (such as AHM, and NetChoice), the reversal rate was 72.73%. The most prominent unanimous reversal was in AHM. Another unanimous reversal came in Devillier, though that holding was on completely different grounds than the Fifth Circuit ruled, and in some regards, was actually a victory for Texas. (No, I won't get into that mess again.) NetChoice was sort-of-unanimous, but it was a very strange reversal. For what it's worth, the Eleventh Circuit was also reversed (It seems the SEC East has a much higher affirmance rate than the SEC West.) The other reversals of the Fifth Circuit split 8-1 (Rahimi and Trevino), 7-2 (CFPB), and 6-3 (Murthy).
