Editor's Picks

Walking the circuit tightrope?

A re-invigorated bill proposed in the 115th Congressional Session this month could spell for a potential shakeup in the Ninth Circuit Judiciary.

The bill that was introduced on February 2, 2017 by Republican Senators Jeff Flake and John McCain, Senate Bill 276, is referred to as a bill intended to amend title 28, United States Code, to divide the Ninth Judicial Circuit of the United States into two circuits, and for other purposes.  Senator Flake announced that the bill would split the Ninth Circuit into a newly created Twelfth Circuit that would cover Nevada, Washington, Idaho, Montana, Arizona and Alaska, leaving the Ninth Circuit with Hawaii, California, Oregon, the Northern Mariana Islands and Guam.  Flake contended that the current Circuit is “just too big” due to it “representing 20 percent of the population and 40 percent of the nation’s land mass.”

The Ninth Circuit was created in 1891 and at the time, represented a mere 3.3 percent of the nation’s population, but by 2000 it represented 19.3 percent of the nation’s populous.  The Court of Appeals for the Circuit decided 11,798 appeals as of September of last year, the highest of any other circuit, with the Fifth Circuit coming in second at 7,899 appeals decided.  The amount of District Court cases decided within the Ninth Circuit is also the highest among the circuits at 63,449 decisions, and the Fifth Circuit takes the second spot at 51,575 rulings.

“…breaking up the Ninth Circuit would mean breaking up a historically liberal portion of the judiciary that often finds itself on the wrong end of Supreme Court reversals”

Another issue that Flake sees with the size of the Ninth Circuit is the amount of time it takes to bring a case from start to finish.  “We have a bedrock principle of swift justice and if you live in Arizona or anywhere in the [Ninth] Circuit, you just don’t have it.”  The average time for an appeal is the nation’s highest at 15.2 months.  The District Courts among the Ninth Circuit ranked third in comparison to other Circuits with the average time of a decision taking 10.94 months.

What is being left unsaid by Flake is that breaking up the Ninth Circuit would mean breaking up a historically liberal portion of the judiciary that often finds itself on the wrong end of Supreme Court reversals.  The Ninth Circuit gained this reputation during President Carter’s Administration in the late 1970’s through his appointment of many justices who were and are still known for their controversial decisions ranging from homosexuals serving in the military, to employment discrimination among women in class action lawsuits.  A study conducted by the American Bar Association in 2010 examined the rate of Supreme Court reversals among the various circuits, and the Ninth Circuit ranked second with an 80 percent reversal rate.  People like Democratic strategist Joe Lestingi argued that “if the Supreme Court wasn’t going to overturn lower court decisions, then we don’t need a Supreme Court anymore.” The Circuit’s philosophy and reversal rate have earned itself the nicknames “Nutty 9th” and “the 9th Circus” among conservatives who have longed hoped a restructuring bill would gain enough steam to one day become law.  It should be noted, however, that since President Carter’s administration, the Circuit has become more centrist through the administrations of President Clinton and President George W. Bush.

What is interesting is that there have been recommendations to split the Ninth Circuit that date back to the 1940’s.  In fact, it seems every decade since then, Republicans have made a push to reform the liberal circuit; however, the proposed Bill usually fizzles out and is referred to a committee who tables it until a later time.  The Bill has been repackaged and renamed under different bill numbers such as Senate Bill 948, Senate Bill 956, and even names like the Court of Appeals Restructuring and Modernization Act or CARMA (if you are into interesting acronyms).  Since 1930, Congress has only redrawn circuit boundaries once.  Upon recommendation by a Republican–chaired Congressional commission, Congress split the Fifth Circuit into what is now the current Fifth and Eleventh Circuit Courts of Appeals.

“…critics of the Bill to split the Ninth Circuit believe this is a cover for a deeper political agenda”

Ninth Circuit justices are highly opposed to the split, believing that the real problem and solution involves seats on the circuit itself.  Judge Mary M. Schroeder, the chief justice of the Ninth Circuit, explained that “the Circuit would be better served if the Senate focused on filling its four current vacancies and the Congress created new judgeships here and across the country.”  Justices are also concerned about the potential split because the start–up cost of adding a new Circuit would be high, given that resources would have to be allocated to appoint new judges and set up a new administrative system as far as a Clerk of Court and Circuit Executive Offices.

In any event, Republicans today have more confidence in the legislation’s chances of passing in the near future due to the recent election that has led to a Republican–controlled House of Representatives and Senate.  Senator Flake believes that this political shift on Capitol Hill means there are a “greater number of people than we’ve ever had that will be pushing for [the bill].”  While the Republican platform for reformation surrounds the Court’s caseload and time of decision–making, critics of the Bill to split the Ninth Circuit believe this is a cover for a deeper political agenda.

Ninth Circuit expert and professor at the University of Pittsburg School of Law, Arthur Hellman, , doubts “any measure would be pushed if there were not concerns about the kinds of decisions the court has been making and the judges making those decisions.”  Professor Hellman’s statements seem to have substantial weight, given past proposed language of Court restructuring bills.  For example, a bill entitled “The Ninth Circuit Court of Appeals Judgeship and Reorganization Act of 2015” introduced in the House, would have given the president the authority to appoint two additional judges to the former Ninth Circuit, three judges for the new formation of the Ninth Circuit, and two additional temporary judges for the former Ninth Circuit.  Measures such as this would have had the potential to create smaller, conservative–controlled judicial districts, which is noteworthy, especially given recent decisions that have come out of the Ninth Circuit in the past weeks.

“There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.”

President Donald Trump signed an executive order on January 27, banning citizens from seven predominantly Muslim countries from entry into the United States in order to protect the American people from terrorist attacks by foreign nationals.  While questions were raised as to the constitutionality of the executive order, Washington State attorney general, Bob Ferguson, challenged the order as a violation of the Establishment Clause set out in the United States Constitution.  The Establishment Clause restricts any passage of laws that favor one religion over another.  Federal Judge James Robart of the Western District of Washington state, found favor in this argument and issued a ruling that restrained the travel ban nationwide.  The Department of Justice appealed the ruling to the Ninth Circuit Court of Appeals and in a unanimous 3-0 decision, the Court denied reinstating the order.  The Court rejected the Department of Justice’s claim that it lacked authority to review the president’s executive order by stating, “there is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.”

With a Republican–controlled Congress and recent liberal Court decisions, it seems a perfect storm is brewing among the governmental branches.  It will be interesting to see whether the Bill to restructure the judiciary will gain further support, or once again find its way to a subcommittee only to be introduced in the next congressional session.  Not only that, the fate of the President’s executive order, if appealed to the Supreme Court, may spell further ammunition for a break–up of the “Nutty 9th” if the Circuit’s historic reversal rate holds true.

Tommy Harvey III
About Tommy Harvey III (10 Articles)
Tommy Harvey III is a third year law student and serves as an Associate Editor for the Campbell Law Observer. He is originally from Atlanta, GA and received his undergraduate degree from the University of Miami. Tommy has worked for the United States Attorney’s Office, Eastern District of North Carolina and the Mecklenburg County District Attorney’s Office in Charlotte, NC. His legal interests include Civil Rights Law, Constitutional Law, and International Law. Tommy is a member of the Campbell Law Trial Team, and serves as a peer mentor as well as the current Vice President and past Treasurer for the Campbell Law Black Law Students Association.