The 9/12 Split: The Newest Proposal To Reduce the Burden on Ninth Circuit Court of Appeals.

By Kole Lyons.

In January 2021, a coalition of Idaho legislators introduced H.R. 320, The Ninth Circuit Court of Appeals Judgeship and Reorganization Act of 2021. This proposal would leave the Ninth Circuit covering California, Guam, Hawaii, and the Northern Mariana Islands. Meanwhile, the proposed Twelfth Circuit would cover Alaska, Arizona, Idaho, Montana, Nevada, Oregon, and Washington. The Twelfth Circuit would hold its regular sessions in Seattle, Washington, and Phoenix, Arizona. Idaho proposes this bill to reduce the Ninth Circuit’s burden, which is currently the largest and most backlogged Federal Circuit Court of Appeals.

Ninth Circuit Statistics

The Ninth Circuit Court of Appeals was established 130 years ago in 1891. At that time, the two judges on the court had jurisdiction over California, Idaho, Montana, Nevada, Oregon, and Washington. Those regions’ population was around 2,000,000 and accounted for 3.3% of the United States’ total population.

Since then, this court has seen extraordinary growth. At the time of the 2010 census, it consisted of twenty-nine Judges overseeing California, Idaho, Montana, Nevada, Oregon, Washington, Arizona, Hawaii, Alaska, Guam, and The Northern Mariana Islands with a total population of 61,742,858 people, or 20% of the total population of the United States. In comparison, the First, Second, Third, and D.C. Circuits combined oversaw a total population of 59,753,110 people in 2010.

As a result of this astonishing size, the Ninth Circuit decides more than 11,000 appeals a year—nearly four times the federal circuit court’s average. These appeals result in a backlog five times greater than the other circuits.  And from the filing of a Notice of Appeal to the Final Order, it takes the Ninth Circuit 15.9 months to handle a civil appeal—four months longer than average.

Since very few cases are heard by the Supreme Court, the Ninth Circuit has the final say of what the law is for each member state for the vast majority of the cases. Some already question the quality of the law produced by this circuit. It has had more decisions reversed by the Supreme Court since 2007 (149 out of 191) than any other circuit. This trend seems to be going strong, with 9 out of 10 cases reversed during the Supreme Court’s 2019 term.

The court’s large size also comes with difficult procedural hurdles. For example, each circuit court uses three-judge panels when deciding each case. With twenty-nine judgeships in the Ninth Circuit, there are over 3,600 possible combinations, not including the senior and visiting judges, who are also frequently used by the court. These 3,600 combinations mean that judges can go years before working with some colleagues. Appellate courts are supposed to interpret the law with one unified voice. One can hardly say that judges—rarely able to deliberate with many of their colleagues—speak with one voice.

In certain circumstances, parties can ask that the entire court decide the case in an en banc session. In every other circuit, any decision heard in this manner is determined by a majority of the court. However, in the Ninth Circuit, a twenty-nine-judge panel would be impractical. To accommodate, the Ninth Circuit employs an en banc procedure where eleven judges hear the case. This procedure means that, rather than a majority of the court making a decision, six judges make law binding on all twenty-nine judges and sixty million people.

Proposals

Idaho’s proposal is not the first of its kind. Congress has established two commissions to study the need to restructure the circuit courts. First, in 1973, a commission recommended dividing both the Ninth and the Fifth Circuits. Congress subsequently split the Fifth Circuit in 1981. However, the Ninth Circuit remained unchanged. Second, in 1998, another commission concluded that the Ninth Circuit needed restructuring due to the unsustainable costs resulting from its immense size. Since then, numerous bills have been introduced to split the Ninth Circuit, each claiming, as does Idaho’s, that it needs dividing to reduce the caseloads and backlogs.

Opponents of these proposals, however, tell a different story. They argue that the real reasons behind the recommendation are political and that size alone does not justify spending millions of dollars to set up a new circuit. The Ninth Circuit has a liberal reputation tracing back to the 1970s when President Jimmy Carter seated fifteen new judges. Opponents of a circuit division want to preserve this liberal reputation. After all, it is responsible for legal decisions that have shaped our country, such as invalidating California’s ban on same-sex marriage, upholding gun-safety laws, and recently fending off the Trump administration’s immigration policies. Luckily, even if Idaho’s proposal is adopted, it will be the same judges making decisions just now on two circuits instead of one.

Those wishing to keep the Ninth Circuit as it stands also argue the “economies of scale,” meaning that federal circuits require high up-front costs to establish but, once established, they become more efficient the larger they get. The Ninth Circuit may reflect these advantages. The Los Angeles County Bar Association points out that the Ninth Circuit is a leader in streamlining procedures to process cases efficiently. However, the economies of scale generally apply to companies aiming to increase production (growing larger) to lower final costs (increased efficiency). But the consequences of a federal circuit judge issuing an opinion are different from the price of any average product.

It is that difference that the Idaho coalition aims to exploit. Rural states like Idaho and Arizona have very different values and policy views than those of California. As it currently stands, there is a significant disconnect between the people of rural Idaho and Arizona and the metropolitan judges in San Francisco making life-altering decisions about the law. Arizona should be particularly concerned about the lack of diversity on the Ninth Circuit bench. For one example, Arizona’s many Native American lands mean that several of the cases heard by the Federal District of Arizona involve Native Americans. The Ninth Circuit, where all those arrive on appeal, does not have a single judge with Native American heritage.

As Supreme Court Justice Elena Kagan put it, “People look at an institution and they see people who are like them, who share their experiences, who they imagine share their set of values, and that’s a sort of natural thing and they feel more comfortable if that occurs.” Politics aside, the size of the Ninth Circuit alone shows the need for restructuring. Furthermore, the legitimacy of the justice system will become more solidified by dividing the Ninth Circuit and bringing the courts closer to the people.

"United States Court of Appeals for the Ninth Circuit, James R. Browning United States Courthouse, San Francisco, California" by Ken Lund is licensed under CC BY-SA 2.0

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By Kole Lyons

J.D. Candidate 2022

Kole Lyons is a second-year law student and a Staff Writer for the Arizona State Law Journal. Before law school, he earned degrees in Law and Constitutional Studies and Criminal Justice at Utah State University. In his spare time, he enjoys watching sports and going on adventures with his family.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.