The ‘9th Circus’ is Badly Broken—Let’s Fix It

By | 2017-06-02T18:30:05+00:00 August 9, 2017|
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The Sacramento Bee recently editorialized in defense of the 9th U.S. Circuit Court of Appeals, a frequently (and legitimately) maligned court that has periodically been the target of barbs by President Donald Trump—among other critics. The 9th Circuit, headquartered in San Francisco, is by far the largest of the 13 appellate courts in the federal system, encompassing California—with a population of 39 million alone—and eight other western states, along with Guam and the Northern Mariana Islands. With 29 authorized “active” (as opposed to retired) judges, and four current vacancies, the unwieldy 9th Circuit is nearly twice as large as the next biggest court of appeals, the 5th Circuit (which includes Texas), and almost five times the size of the smallest, the 1st Circuit in New England. The states comprising the 9th Circuit account for one-fifth of the entire United States population.

In addition, because life-tenured federal judges are eligible to serve (and draw a salary) even after they have retired from regular duty, the ranks of the Ninth Circuit include 18 “senior status” judges, for a current complement of 43 judges—a veritable platoon of black robes. Size matters. Appeals are heard by three-judge panels, who are expected to follow circuit precedent. The larger the court, the greater the potential for intra-circuit conflicts, which are resolved by the active judges on the court of appeals sitting “en banc”—as a whole. Due to its swollen ranks, it isn’t practical for the 9th Circuit to hear cases this way, so it uses an abbreviated en banc system limited to a random selection of 11 judges. As a result, doctrinal consistency within the 9th Circuit is seriously lacking—it’s essentially a jurisprudential Tower of Babel.

The 9th Circuit’s gargantuan size and geographic breadth, spanning 1.5 million square miles—stretching from Hawaii to Montana, and Alaska to Arizona—have perennially prompted calls to break the circuit into smaller parts. The circuit, whose sitting judges tilt Democratic by a 2-to-1 margin (28 Democrat appointees to 15 Republicans overall, and 18 to seven among “active” judges), has also been heavily criticized for liberal activism, and frequent reversals by the Supreme Court. Dismissing this criticism, the Bee contends that the 9th Circuit’s decisions “are hardly outside the mainstream,” and suggests that proposals to break up the circuit are unfounded—even dictatorial, invoking Venezuelan strongman Nicolas Maduro.

A Long History of Bad Decisions
The
Bee’s sycophantic defense of the 9th Circuit is as weak as it is predictable. The 9th Circuit has worked hard to earn the derisive moniker “9th Circus,” and fully deserves the obloquy directed at it. Here are just a few examples:

In 2002, the 9th Circuit risibly ruled that the words “under God” in the Pledge of Allegiance constituted an unconstitutional establishment of religion, a decision that was universally condemned and overturned by the Supreme Court in 2004.

Judge Stephen Reinhardt, appointed by President Jimmy Carter in 1980, is the most frequently reversed judge in America—by some estimates, “one of the most overturned judges in history.” The Supreme Court often reverses Reinhardt unanimously, and sometimes even without oral argument. “Per curiam” reversals are the ultimate rebuke to a renegade judge, but for Reinhardt they are routine. Reinhardt is so contemptuous of Supreme Court precedent that the High Court has accused him of “judicial disregard”—the mark of a scofflaw.

While the statistics vary from year-to-year, the Ninth Circuit is often the most frequently-reversed circuit in the country. During the 2008-2009 term, for example, the Supreme Court overturned the 9th Circuit in 14 out of 16 cases—a reversal rate of 88 percent. Even the Bee concedes that the 9th Circuit was reversed in eight of 11 cases in 2015 and seven of eight cases in 2016—an abysmal track record. The specific 9th Circuit decision featured twice by the Bee (here and here)—allowing a Berkeley resident to sue Austria in a U.S. court for injuries that occurred abroad—was reversed unanimously by the Supreme Court. Four justices on the Supreme Court are committed liberals; unanimous reversals are evidence of a serious blunder by the lower court.

When multiple child-killer Robert Alton Harris was executed by the state of California in 1992, following 13 years of appeals, the Supreme Court had to take the unprecedented step of ordering the 9th Circuit to cease interfering with the execution, because of the number of frivolous, last-minute stays the lower court judges had granted.

The list could go on: the 9th Circuit has effectively placed the California state prison system under judicial supervision, resulting in the release of dangerous offenders who had not completed their sentences (an order that Justice Antonin Scalia calledperhaps the most radical injunction issued by a court in our Nation’s history”); led a decades-long crusade—ultimately unsuccessful—to remove a cross-shaped monument from San Diego’s Mount Soledad; overturned California’s Proposition 8, banning same-sex marriage; struck down Arizona’s “English-only” constitutional provision; applied the Americans with Disabilities Act to law enforcement officers’ treatment of violent suspects; and, most recently, erroneously stayed President Trump’s travel ban order.

What Realignment Might Look Like
The 9th Circuit is so consistently biased to the Left that the rare instances in which it issues balanced decisions are noteworthy, such as the 2012 ruling in favor of the San Diego-Imperial Council of the Boy Scouts of America in a baseless lawsuit brought by the American Civil Liberties Union. Even then, the Boy Scouts had to wait nearly a decade for vindication.

By any reasonable assessment, the 9th Circuit is broken. It is too big, has too many judges to maintain doctrinal coherence, and its decisions often fail to conform to applicable law, including Supreme Court precedents. It should be split up, as the 5th Circuit was in 1981 when the states of Alabama, Florida, and Georgia were “spun off” to form the 11th Circuit. Because of the so-called “blue slip” practice, giving home-state senators influence over the president’s nomination of federal judges, the populous and lopsidedly Democratic state of California will always have liberal federal judges—both at the trial court level and within the 9th Circuit. At present, California’s peculiar politics have disproportionate influence over the rest of the circuit, which currently includes red states such as Alaska, Idaho, and Montana.

As a practical matter, California (perhaps joined by Hawaii) may have to be its own circuit, with the remaining states reorganized into a separate circuit, or perhaps two. The goal should be to limit the number of judges in each of the newly formed circuits to the range of 12 to 15 that currently prevails in most other circuits. That size, dramatically smaller than the current 9th Circuit, would allow more consistency among three-judge panels, and permit full en banc review in the event of intra-circuit conflicts, both of which are important for maintaining coherent circuit precedent.

Such sensible (and long-overdue) reforms do not threaten “the independence of the judiciary,” as the Bee hysterically suggests. Rather, realignment of the states now nested within the 9th Circuit would make the court more efficient and less political, and promote the rule of law. In the process, breaking up the 9th Circuit into two or three separate courts of appeals would also improve its tattered public image. The “Ninth Circus” is a national laughingstock, and it’s time to fix it.

Image copyright: kencor / 123RF Stock Photo

About the Author:

Mark Pulliam
Mark Pulliam is a lawyer and commentator who fled California and now lives in Austin, Texas. He is a contributing editor at the Library of Law and Liberty.