“That circuit is in chaos and that circuit is frankly in turmoil,” President Donald Trump said at a February press conference. He was referring to the 9th Circuit Court of Appeals, which had just unanimously upheld a lower court’s suspension of his ban on travel from seven Muslim majority countries.
It was the latest in a decades-long line of conservative attacks on what they call the “nutty 9th.” This year, Republicans in Congress have once again introduced bills to split the Western court of appeals. They argue it oversees too many states, takes too long to hear cases and gives liberal California an exorbitant influence over other states in the court’s jurisdiction. Lawyers and senators critical of the split see the bills as judicial gerrymandering, and an attempt to shift the 9th’s decisions to the right.
The 9th is the largest appeals court in the country, with jurisdiction over 65.1 million people in nine states. It has a bankruptcy court, smaller district courts and an appeals court, and sees far more cases than the other federal circuit courts. Cases in the 9th’s jurisdiction are first heard in a district court. If either side is unsatisfied with a district judge’s ruling, they can ask to make their case in front of the 9th’s Court of Appeals, the last stop before the U.S. Supreme Court.
The 9th sees many contentious environmental cases, along with the 10th Circuit, the only other court that includes Western states. That has made it influential in the region. Last October the 9th Circuit Court of Appeals set precedent by ruling that wildlife could be listed under the Endangered Species Act based on projected losses from climate change. In January 2016 it ruled on the prominent public-lands dispute between Nevada rancher Wayne Hage and the federal government, overturning the Hage estate’s 2012 victory. The Hages have waged an ideological and legal battle against the federal government, arguing they didn’t need grazing permits. “It looks to me like the 9th Circuit just swelled the ranks of the militias,” Hage’s son, Wayne N. Hage, told the Las Vegas Review-Journal last year.
Bills to divvy up the 9th into different circuits have been introduced since the 1980s, and gained traction in the 1990s. Rep. Mike Simpson, R-Idaho, has unsuccessfully introduced a bill to split the court in every session of Congress since 2001. Proponents critique the sheer size of the court and point to the average 15-month wait for cases to be heard in the 9th, which is currently understaffed. They say smaller courts would be more efficient, which would only be true if more judges were also added. Those opposing a split say that instead of breaking up the court, current longstanding vacancies should be filled and the overall number of judges increased, judges that would be chosen by Trump and approved by Congress. “The solution is not to duplicate management and create more bureaucracy,” 9th Circuit Judge Sidney Thomas told the Senate in 2006. “The best path is to become more efficient and effective by pooling our resources and using economies of scale.”
The 9th has generally been considered more liberal than other circuit courts. Out of the current judges, 63 percent have been appointed by a Democratic president. Trump and critics of the court argue that the Supreme Court’s 80 percent reversal rate of the 9th’s rulings proves it’s biased. But the Supreme Court only hears .15 percent of cases ruled on by the 9th Circuit Appeals Court, meaning the actual number of cases overturned remains low. Holly Doremus, law professor at UC Berkeley, says the sense that the 9th is overtly liberal is a “mythology” that doesn’t bear out. “There has long been a sense in the Intermountain West that California urban liberals have too much influence on their law,” she says. Indeed, Rep. Andy Biggs, R-Ariz., said he hoped his bill would “free Arizona from the burdensome and undue influence” of the 9th.
The current bills in Congress shuffle the states differently, but generally create a 12th Circuit Court and separate California from the Intermountain West. Sometimes, the bills make for messy scenarios on the ground. For example, Arizona Sen. Jeff Flake’s bill would split Lake Tahoe, which straddles the California-Nevada border, between two different circuit courts. The price tag for any such split is expensive: in 2006, the Administrative Office of the U.S. Courts found that creating a 12th Circuit would cost $96 million, and $16 million annually to maintain.
Given the track record of past bills and preoccupation with other pressing issues, it’s unlikely that Congress will split the court now. But the bills have more visibility than in recent years because of Trump’s friction with the judicial branch andRepublican control of the House and Senate. It wouldn’t be the first time, either: The 5th Circuit Court split in 1981 after judges voted unanimously to break up. That unanimous perspective has never been shared by the 9th. “Circuits on the East Coast have been fragmented from the 18th century, but why in the 21st century should we set out to create a similar system in the West?” then-Chief Judge Mary Schroeder asked the Senate in 2006. “We in the West didn’t grow from 13 colonies.”
Anna V. Smith is an editorial fellow at High Country News. She tweets @annavtoriasmith
Another version of this story was published in our print magazine on May 1, 2017.
This article appeared in the print edition of the magazine with the headline Republicans push to split the 9th Circuit.
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