Splitting the Ninth Circuit Once and For All

Joseph Di Pietro

When examining a map of the geographic jurisdictions of the federal courts of appeals, one could hardly be blamed for momentarily believing that one was looking at a vague approximation of the United States’ political boundaries soon after the 1803 Louisiana Purchase. As one’s gaze moves west across the continental United States, one notices that the geographic jurisdictions of the various circuit courts grow to cover vast swaths of land. The U.S. Court of Appeals for the Ninth Circuit is of particular note, spanning nine states and two territories.

This spatial anomaly is largely the outgrowth of the historical territorial expansion of the United States. At the time of its creation in 1891, the Ninth Circuit encompassed a modest 4 percent of the country’s population. But, with the admission of new states to the union and the ensuing explosive population growth of the American West, today’s court now represents  20 percent of the national population.

Due to this unique predicament and  disproportionate national influence, a disposition Ninth Circuit Chief Judge Alex Kozinski refers to as “Western independence,” the court has settled comfortably as somewhat of a judicial renegade, the effects of which are well noted. [1] Not to be bested by any other circuit on a given metric, the Ninth leads the nation at 77 percent in the number of its appealed decisions being overturned by the Supreme Court. [2] It’s penchant for liberal decisions being out of step with the present Roberts Court and its lack of shyness toward provoking circuit splits aside, the bloated size of the Ninth Circuit is simply bad for judicial administration and for those who appear before the court.

One manifestation of this unwieldiness is the breakdown of the court’s cohesiveness. Judge Andrew Kleinfeld of the Ninth Circuit writes of the sheer volume of cases brought before the court as being too overwhelming for any one judge to keep abreast of each. In advocating a division of the court to the Commission on Structural Alternatives for the Federal Courts of Appeals, sometimes eponymously styled the White Commission after the retired Justice Byron White who headed it, he writes that the high rate of decisions overturned by the Supreme Court is due (at least in part) to the inability of judges to read their colleagues’ opinions that collectively number twelve thousand per annum (double the number of the next busiest court, the Eleventh Circuit [3]) and “correct the errors by effectively rehearing cases en banc.” [4]

With twenty-nine active judgeships, the court has resorted to randomized groups of eleven judges to compose en banc panels. [5] Such an arrangement compromises the fundamental purpose of an en banc panel: to arrive at a more certain opinion of the majority of the court. Judge Kleinfeld contends that this ad hoc solution undermines the ability to rightly refer to the Ninth Circuit as a singular “court.” The inability of the court to articulate an opinion of the majority renders it a heterogeneous organization of quasi-independent judicial panels; at best, the en banc panel can deliver only a plurality opinion, though, absent the input of the remainder of the court, even this remains uncertain.

The second issue in the judicial administration of such a large territory lies in its geographic diversity and, by extension, its diversity of judicial philosophy. From a jurisprudential perspective, the long reach of the Ninth Circuit presents no immediate problem. Yet, as a practical matter, the integrity of the San Francisco-based court’s decisions as applicable across its broad geographic jurisdiction is frequently, implicitly questioned. Senator Lisa Murkowski of Alaska asserts the need for a judiciary attuned to the “issues that are fundamentally unique to the Pacific Northwest.” [6] Similarly Judge Kleinfeld notes that much of federal law is locally intended and many state customs and practices are co-opted for use in the federal courts on matters that are not nationally prescribed. For this reason, judges need not be—and, conversely, often cannot be—sufficiently familiar with state laws and local conventions outside their ordinary scope of practice.

This alarming shortcoming of the court has been recognized in the numerous unsuccessful attempts to divorce the giant that is California from its neighbor states. Most recent is Arizona Governor Doug Ducey’s petition of Congress to remove his state from the Ninth Circuit, transferring it to the Tenth, a proposal endorsed by retired Justice Sandra Day O’Connor, or creating a new circuit altogether. [7] This expresses sentiments that echo from decades prior that favor structural reform of the Ninth Circuit, including those sentiments expressed at various points by Justices Scalia, Kennedy, and Stevens. [2]

All this is not to say that there are not valid reasons for preserving the behemoth circuit. Indeed, the White Commission that set out to restructure the court eventually recommended against splitting the court, citing a confluence of interests that could be maintained only by preserving the admittedly imperfect Ninth Circuit. [8] However, as the Commission’s findings now approach twenty years of age, it is time to re-examine the court’s status in light of its only increasing caseload. To maintain the integrity of Ninth Circuit Court of Appeals, the political interests of maintaining a decided ideological character or national clout must be subordinated to the interests of maintaining a proper judiciary, and the court must be fundamentally restructured.


[1] Schwartz, John. “‘Liberal’ Reputation Precedes Ninth Circuit Court.” New York Times, April 24, 2010. http://www.nytimes.com/2010/04/25/us/25sfninth.html?_r=1.

[2] Ford, Matt. “Arizona v. Ninth Circuit Court of Appeals.” The Atlantic, February 4, 2016. http://www.theatlantic.com/politics/archive/2016/02/a-circuit-split/435567/.

[3] Lat, David. “Will We See A Return Of The Ninth Circuit Curse?” Above the Law. January 29, 2016. http://abovethelaw.com/2016/01/will-we-see-a-return-of-the-ninth-circuit-curse/?rf=1.

[4] “Splitting the Ninth Circuit.” Andrew J. Kleinfeld to Commission on Structural Alternatives for the Federal Courts of Appeals. May 22, 1998. University of North Texas Libraries.

[5] United States. Court of Appeals (9th Circuit). Advisory Committee on Rules of Practice and Internal Operating Procedures of the United States Court of Appeals for the Ninth Circuit. Federal Rules of Appellate Procedure. http://cdn.ca9.uscourts.gov/datastore/uploads/rules/rules.htm.

[6] Fisher, Gregory S. “Breaking up Is Hard to Do.” Alaska Bar Association. Alaska Bar Rag, May 2003. https://www.alaskabar.org/servlet/content/breaking_up_is_hard_to_do__analysis_of_a_ninth_circuit_court_of_appeals_split_.html.

[7] Carter, Terry. “Arizona Governor Wants the State out of the 9th Circuit.” ABA Journal. January 28, 2016. http://www.abajournal.com/news/article/arizona_governor_wants_the_state_out_of_the_9th_circuit.

[8] Tobias, Carl. “The White Commission and the Federal Circuit.” Cornell Journal of Law and Public Policy, 2nd ser., 10, no. 1 (Fall 2000). http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1008&context=cjlpp.

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