Many conservatives like to bash the Ninth Circuit Court of Appeals, pointing out that in recent years it has had more decisions overturned by the Supreme Court than any other Court of Appeals. I’m no legal expert, but I’ve long suspected that this is because the Ninth Circuit has been faithfully applying precedents that the Supreme Court has been in the process of overturning over the past two decades. Which is exactly what a lower court is supposed to do. Other Courts of Appeals have, to a greater extent than the Ninth Circuit, been instead playing a game of “guess what the Supreme Court will say.” To the extent other Courts have been right in their guesses, they have been overturned fewer times.

Some support for this thesis is contained in today’s concurring opinion in the Newdow case by Justice Clarence Thomas, the Supreme Court’s most conservative Justice. Thomas, who would have overturned Newdow on the merits, writes: “I conclude that, as a matter of our precedent, the Pledge policy is unconstitutional.” (Via the Volokh Conspiracy.)