Matt Schneider
The Constitution envisaged the judicial branch of the federal government as a nonpartisan arbiter of the legality of laws passed throughout the land, as a body that superseded the political winds of the time. However, with the advent of sharp political polarization in the last few decades, the judicial branch has often been dragged down through the partisan mud, with political actors seeing the court system more as a tool for their own policy goals. Under the current administration, the politicization of the judiciary has taken the form of an assault on the Ninth Circuit Court of Appeals.
On April 26th, the President told the Washington Examiner that his political opponents were using the court for “judge shopping” and that “what’s going on in the 9th Circuit is a shame” [1]. Additionally, a day earlier, the White House Chief of Staff Reince Priebus claimed that the court was “going bananas” [2]. Finally, Senator Ted Cruz has called the actions of the Court “lawless,” while also stating that the breakup of the court was “a possibility” [3, 4].
What events have led to such an all-out assault by the administration and its allies on a circuit court of appeals? Well, mainly, the court has served as the most significant impediment to the rollout of President Trump’s agenda in recent months. In particular, the court has blocked two of the President’s most controversial campaign promises: The court ruled as unconstitutional both the ban on travelers from the Middle East—seen by the Court as running “contrary to the fundamental structure of our constitutional democracy” in February—and the attempt to defund so-called “sanctuary cities,” by attaching immigration-related language to federal grants in April [5,6].
The court, which covers seven states in the West, Hawaii, Alaska, as well as Guam and the Northern Mariana Islands, handles over 12,000 cases at the appellate level each year [7,8]. The court has been seen by many in conservative circles as an example of judicial activism run amok and a way for left-leaning groups to win an appeal in a federal court [9]. Republicans have also pointed to the fact that the court has a 79% rate of its decisions being overturned at the Supreme Court as evidence of its straying from the laws of the land [10]. Additionally, other Republicans have argued that the court, which sees one-third of all federal appeals, is too crammed with litigation to rule effectively and efficiently [11,12].
Many of these arguments fall short when considered within context. First, there is no evidence that the Ninth Circuit has struggled to handle the amount of cases it is sent. Indeed, the Court has actually instituted several mechanisms by which to systematically screen cases for consideration and devote resources and judges to consider cases [13]. Second, the Supreme Court reverses the opinions of lower courts at a rate of 70%, which is not that much lower than the rate for the Ninth Circuit [14]. Finally, and perhaps most importantly to those crying for change in the Ninth Circuit fail to realize that breaking up the Court will probably not have much of an effect on the types of rulings passed down by the Ninth Circuit. The judges will still serve on the bench either in the Ninth Circuit or in another circuit court, and the current majority of judges appointed by Democratic presidents (18 of the 25 at the Ninth Circuit) will prevent any ideological shift [15,16]. Instead, any restructuring might lead to the production of two liberal courts instead of just one [17]. Given these circumstances, it seems that most of the ire with the court derives from its ability and willingness to challenge the policy priorities of the administration.
So, what legal means do the President and his allies in Congress have to redress some of their grievances with the Ninth Circuit? Certainly, an executive action signed unilaterally by the President will not suffice; indeed, Congressional approval of legislation aimed at restructuring the Ninth Circuit is needed for any such change to be implemented [18]. However, despite Republican majorities in both houses of Congress, conservatives will still need to face a Democratic caucus more than willing to use its filibuster to oppose such a partisan move. However, despite the odds against such an action, four Republican bills introduced to the House and Senate in recent months have been proposed, some of which seek to establish a 12th Circuit Court that that does not include California [19]. For real change to occur, the President would need to appoint more conservative judges, a possibility only if the Ninth Circuit is expanded to include more judges [20].
Even if the Republican White House and Congress could get past these obstacles, it would be unclear if the American people could support such a measure. History tells us no. Such a blatant attempt to change the judicial landscape to better favor a President’s partisan ends would incur rabid opposition from the public, as it has in the past. The most memorable example of such judge cherry-picking was President Franklin Delano Roosevelt’s court-packing plan in 1937, in which he sought to reshape the Supreme Court so that he could appoint more judges sympathetic to his New Deal legislation. That endeavor failed because of the obviousness of its partisan nature, and it would not be surprising if any attempt to change the Ninth Circuit Court would fail for the same reason.
Works Cited
[1] Westwood, Sarah. “Exclusive Interview: Trump ‘Absolutely’ Looking at Breaking up 9th Circuit.” Washington Examiner. N.p., 26 Apr. 2017. Web. 30 Apr. 2017. <http://www.washingtonexaminer.com/trump-absolutely-looking-at-breaking-up-9th-circuit-court-of-appeals/article/2621379>.
[2] Fabian, Jordan. “Priebus Calls 9th Circuit ‘Bananas,’ Says Administration Will Prevail on Sanctuary Cities.” The Hill. N.p., 26 Apr. 2017. Web. 30 Apr. 2017. <http://thehill.com/homenews/administration/330572-priebus-calls-ninth-circuit-bananas-warns-admin-will-prevail-on>.
[3] “Cruz: Court’s Travel Ban Decision Lawless.” CNN. Cable News Network, 23 Feb. 2017. Web. 30 Apr. 2017. <http://www.cnn.com/videos/politics/2017/02/23/ted-cruz-cpac-judicial-activism-immigration.cnn>.
[4] Hensch, Mark. “Cruz: Breaking up 9th Circuit Court ‘a Possibility’.” The Hill. N.p., 27 Apr. 2017. Web. 30 Apr. 2017. <http://thehill.com/homenews/senate/330935-cruz-breaking-9th-circuit-court-a-possibility>.
[5] Zapotosky, Matt. “Federal Appeals Court Rules 3 to 0 against Trump on Travel Ban.” The Washington Post. WP Company, 09 Feb. 2017. Web. 30 Apr. 2017. <https://www.washingtonpost.com/world/national-security/federal-appeals-court-maintains-suspension-of-trumps-immigration-order/2017/02/09/e8526e70-ed47-11e6-9662-6eedf1627882_story.html?utm_term=.dd6cd0fd61f6>.
[6] Phillips, Amber. “California Is in a War with Trump on ‘Sanctuary Cities.’ It Just Won Its First Major Battle.” The Washington Post. WP Company, 25 Apr. 2017. Web. 30 Apr. 2017. <https://www.washingtonpost.com/news/the-fix/wp/2017/04/25/california-is-in-a-war-with-trump-on-sanctuary-cities-and-it-just-won-its-first-major-battle/?utm_term=.e3116cc7da4b>.
[7] “What Is the Ninth Circuit?” Ninth Circuit Court of Appeals. Web. 30 Apr. 2017. <https://www.ca9.uscourts.gov/judicial_council/what_is_the_ninth_circuit.php>.
[8] Feuer, Ben. “The Republican Case for Breaking up the Notoriously Liberal 9th Circuit Makes No Sense.” Los Angeles Times. Los Angeles Times, 19 Mar. 2017. Web. 30 Apr. 2017. <http://www.latimes.com/opinion/op-ed/la-oe-feuer-9th-circuit-20170319-story.html>.
[9] Hensch, Mark. “Cruz: Breaking up 9th Circuit Court ‘a Possibility’.”
[10] Feuer, Ben. “The Republican Case for Breaking up the Notoriously Liberal 9th Circuit Makes No Sense.”
[11] Wheeler, Lydia. “Trump’s Hands Are Tied on 9th Circuit.” The Hill. N.p., 28 Apr. 2017. Web. 30 Apr. 2017. <http://thehill.com/homenews/administration/331108-trumps-hands-are-tied-on-9th-circuit>.
[12] Phillips, Amber. “Can Trump ‘absolutely’ Break up a Federal Court That’s Standing in His Way?” The Washington Post. WP Company, 28 Apr. 2017. Web. 30 Apr. 2017. <https://www.washingtonpost.com/news/the-fix/wp/2017/04/28/can-trump-absolutely-break-up-a-federal-court-thats-standing-in-his-way/?utm_term=.4f82c8fa53ad>.
[13] Feuer, Ben. “The Republican Case for Breaking up the Notoriously Liberal 9th Circuit Makes No Sense.”
[14] Ibid.
[15] Ibid.
[16] Westwood, Sarah. “Exclusive Interview: Trump ‘Absolutely’ Looking at Breaking up 9th Circuit.”
[17] Wheeler, Lydia. “Trump’s Hands Are Tied on 9th Circuit.”
[18] Phillips, Amber. “Can Trump ‘absolutely’ Break up a Federal Court That’s Standing in His Way?”
[19] Ibid.
[20] Phillips, Amber. “Can Trump ‘absolutely’ Break up a Federal Court That’s Standing in His Way?”
