Breaking Up Is Hard To Do: The Timing and Rationales For Splitting The Ninth Circuit Are Dubious

ninth-circuit-logoBreaking-up-is-hard-to-do-neil-sedakaThe call by President Donald Trump to break up the United States Court of Appeals for the  Ninth Circuit have been echoed by members of Congress, including most recently Sen. Ted Cruz (R., TX).  Below is my column in The Hill Newspaper on the controversy.



In the aftermath of the latest legal setback in the Ninth Circuit over his sanctuary city order, President Trump immediately called for the breakup of the Ninth Circuit. He called the 9th Circuit “outrageous” and the decision of Judge William Orrick as a case of flagrant “judge shopping” in the circuit that has repeatedly obstructed him. It is not the first time that the idea of a break up of the Ninth Circuit has been raised. However, as Neil Sedaka might advise Trump, “Breaking Up Is Hard To Do.” The division of the Ninth Circuit is not quite as easy as many have suggested and this important decision should not be made as retaliation for contrary rulings.

There are valid arguments for dividing the Ninth Circuit, which currently covers Arizona, California, Alaska, Nevada, Idaho, Oregon, Montana, Washington and Hawaii, as well as Guam and the Northern Mariana Islands. Presidential pique is not one of them. First and foremost, the decision of Orrick (which I have criticized) was not a case of judge or forum shopping. As Trump himself has repeatedly pointed out, many California cities have sanctuary policies. Those cities have a right to go to court to challenge the sanctuary city order. They cannot file in Kansas. They are in California, and California is in the Ninth Circuit. Moreover, judges are randomly selected. It is true that Orrick was an ardent supporter of President Obama and raised over $200,000 for his election before Obama then nominated Orrick for the court. However, the Clerk of Court selected Orrick randomly.

Additionally, while I believe that Orrick’s order was premature and flawed, there are valid grounds to challenge the order. A decision of the significance of breaking up the Ninth Circuit should not occur in the midst of a conflict between the courts and the White House. It is hardly a compelling way to respond to the claimed political influence on the Court by calling on politicians to effectively punish it for its decisions. Ironically, with the filibuster gone in appellate confirmations (thanks to the Democratic senators) and the Senate control in GOP hands, Trump could materially change the Ninth Circuit (which currently has four vacancies and will have additional seats in the future).

Moreover, it is not a compelling argument to call for the splitting of the circuit because it is arguably “the most reversed circuit” by the Supreme Court. First and foremost, this figure is misleading. Some circuits have a 100 percent reversal rate in some years because they had only one or two cases accepted for review. And even when the Ninth Circuit is the “most reversed” in a given year, it is not by much. There is a higher likelihood of reversal when a case is accepted by the Court – it is accepted for a reason and, for any circuit, it is not good news to end up on the docket. Thus, even in years when the Ninth Circuit is the most reversed, it is a close question of a few percentage points.

The ultimate question of dividing the Ninth Circuit is a difficult one. The circuit is truly a gargantuan. With over 12,000 appeals, the Ninth Circuit has twice the number of cases of the next largest circuit: the Fifth Circuit. The Fifth Circuit itself was split up in 1981 to form the 11th Circuit. With one-fifth of country’s population in the 9th Circuit, the court has a massive array of 29 judges with four vacancies plus 15 senior status judges.

However, the difference between the break up of the Fifth Circuit and the Ninth Circuit breakups can be summed up in one word: California. The state holds roughly a tenth of the population and will continue to generate more appeals. Indeed, even if you reduce the 9th Circuit to California alone, it would likely still have more appeals than any other circuit. Trial courts in the 9th Circuit decide tens of thousands of cases amounting to over 20 percent of the total trial decisions for the country. Cutting the circuit could increase a load for Ninth Circuit judges who are already struggling to keep up with their dockets.

The decision becomes even more challenging when you consider the details of the division. To make sense, virtually all of the states (with the possible exception of tiny Hawaii and Guam) would be removed from the Ninth Circuit. However, that would actually make the Ninth Circuit even more liberal from the perspective of critics. Even if you throw in Oregon, it will be largely California judges. As Sedaka sang, “if you go then I’ll be blue, cause breaking up is hard to do.” 

We have never had a circuit that was largely composed of a single state, which the new 9th Circuit could effectively become. The large number of states actually served to dilute the number of California judges on appellate panels. The division would also increase costs by duplicating things like the Clerk’s office and staff to serve two separate circuits.  The circuit currently benefits from the efficiency of having one administration for a large number of cases. The added costs from a split might be better put toward adding badly needed judges to the trial and appellate benches.

These concerns are not necessarily the end of the matter. It would be good to divide the circuit to try to keep the various circuits in closer population balance (though circuits like the 8th Circuit and 10th Circuit remain much smaller). Moreover, it is not a bad thing to have additional circuits rendering decisions (and different viewpoints) on controversies for submission to the Supreme Court. Moreover some arguments by the 9th Circuit judges are equally questionable. Many have argued that, unlike the break up of the 5th Circuit, most 9th Circuit judges oppose this proposal. That is hardly determinative. Frankly, the 9th Circuit judges benefit from occasional court sittings and circuit events that are held in some of the most beautiful areas of the world (including Hawaii). The composition of the 9th Circuit should be determined by what is best for the court system as a whole and the public interest.

However, there is a real cost to splitting a circuit in the heat of current controversies.  Calling for the splitting of the circuit in the aftermath of the opposing opinions creates a chilling image like the Queen of Hearts declaring “off with their heads” for painting her roses red. We live in a country that has long benefitted from an independent court system. Changes like the division of the 9th Circuit should be made for the right reasons and at the right time. Both are wanting in the current debate.

There have been proposals to divide the 9th Circuit for decades. The reason is that the legitimate objections to its size collide with the realities of creating new circuits with California remaining intact. Every time that Congress has come close, it ended up exactly with Sedaka left it: “They say that breaking up is hard to do; Now I know; I know that it’s true.” 

Jonathan Turley (@JonathanTurley) is the Shapiro Professor of Public Interest Law at George Washington University.

45 thoughts on “Breaking Up Is Hard To Do: The Timing and Rationales For Splitting The Ninth Circuit Are Dubious”

  1. Paul. Yep, among The Monks (“Des Moines”).

    Keep them grounded and away from rich, liberal cocktail parties.

  2. So, if breaking up the 9th would cause increased administrative costs and would increase the influence of CA in the new 9th or 11th then…
    … let’s combine all the Circuits into one. Admin costs plummet; CA influence is proportionally smaller; the add/remove of a judge has a smaller impact; attempts to judge-shop are harder. Publish stats to determine if judges are chosen randomly. There is only one SCOTUS. Why not just one (albeit very large) CCOTUS?

    1. Steve from Texas – the Circuit could meet in the middle of Iowa. 🙂

  3. I’m basically disinclined to honor the ravings of a six foot tall nine year old with an reply, whose sidekick calls his wife “Mommy.”

  4. I have long been for the break up of the 9th circuit and I see no reason to Not split California in half. Southern California with Nevada, Arizona, and Hawaii are the ” new” circuit court. Its seat should be in Round Rock, Arizona far away from any big or sanctuary city.

    1. solvermn – you do know that lawyers charge their clients if they have to drive to Round Rock. 🙂 Although the idea of 12 circus judges living there is intriguing. 🙂

  5. As usual, JT gets his facts wrong, just as the Ninth Circuit frequently does. Neither of them cares much about the facts. And neither cares much about case law or precedent either. Those things are merely raw materials that can be bent, twisted, distorted, fabricated, and ignored as necessary to reach “opinions.”

    First, Neil Sedaka didn’t write the lyrics to “Breaking Up is Hard to Do.” He wrote the music and Howard Greenfield wrote the lyrics. (The two would write many other hits together.)

    Second, Greenfield and Sedaka’s song has to do with personal relationships, not organizations, and JT simply does what the Ninth Circuit habitually does. The rely on inapposite precedent to “support” bogus opinions.

    Organizations, unlike close personal relationships, can easily be broken up when necessary and desirable. At one time, for example, there was only one phone company, and you could take it or leave it. Customers then referred to this monolith as “Ma Bell.” But a sound decision was made to break up “Ma Bell” into many separate phone companies, then called the “Baby Bells.” One of these companies has ultimately emerged as Verizon. So, today, Verison competes with AT&T, also one of the descendants of “Ma Bell.” Was there great difficulty and pain in the original break up? Some falsely argued that there would be. But today, everyone who knows business history agrees that the “Ma Bell” break up was one of the most successful and beneficial of all time.

    So, of course, the Ninth Circuit could be readily broken up–and well it should be.

    Here’s a great comic scene from a movie that was way ahead of its times about the power of “Ma Bell,” Ted Flicker’s “The President’s Analyst” (1967). Despite the break-up of “Ma Bell” decades ago and the fact that this movie is 50 years old, “The President’s Analyst” is technologically and politically even more relevant today, as you will see in this brief clip.

  6. “[E]ven if you reduce the 9th Circuit to California alone, it would likely still have more appeals than any other circuit.”

    Truly an amazing factoid.

  7. “However, the Clerk of Court selected Orrick randomly.”

    One of the most naive observations I’ve seen today. JT needs to get out more…….preferably a visit to the real world. Curious, how long since he actually practiced law anyway?

    I used to have my young associates follow this blog for insight. Now, I have them follow so we can compare ‘in theory’ to ‘reality’.

    1. “‘However, the Clerk of Court selected Orrick randomly.’ One of the most naive observations I’ve seen today.”

      [Northern District] Local Rule 3-3. Assignment of Action to a Judge
      (a) Assignment. Immediately upon the filing of any civil action and its assignment to a
      division of the Court pursuant to Civil L.R. 3-2, the Clerk shall assign it to a Judge
      pursuant to the Assignment Plan of the Court. The Clerk may not make or change any
      assignment, except as provided in these local rules or in the Assignment Plan (General
      Order No. 44).

      General Order No. 44 states in part:

      D. Assignment of Cases
      1. Unless otherwise required by the Executive Committee, cases shall be assigned by the
      Clerk to the judges holding chambers in the courthouse or courthouses serving the
      county in which the action arises.
      2. Cases shall be assigned blindly and at random by the Clerk by means of an
      automated system
      [my emphasis] approved by the judges of the court. Such system will be
      designed to accomplish the following:
      a. Proportionate, random and blind assignment of cases [my emphasis]; . . .

  8. Agreed! This breakup is long overdue. In my view, it’s irrelevant that the ,Trunp administration is calling for it after an adverse ruling. When would we otherwise be able to marshall the will to get this done?! It’s time!

    1. Maybe they can do that after they build the wall which now looks like never.

  9. Setting aside the controversy surrounding current events, the 9th Circuit needs to be split for practical reasons. A circuit serving 20% of the country’s population (twice the size of any other circuit) and having 29 authorized judges is too large to be effective. How in the world does one get en banc consideration with 29 voices to be heard? How much time does there need to be alloted for argument when there are 29 jurists asking questions? Do they have a courtroom large enough to seat 29 judges? Do they circulate proposed panel decisions among all 29 judges?

    Split the west coast states plus Hawaii and the Pacific territories from Alaska and the mountain west. Yes, that would still leave a large and liberal 9th Circuit, but the new circuit would draw judges solely from the more conservative mountain west and Alaska. With the growing populations of Arizona and Utah, the population disparity would in a few years be no worse than currently exists between the current 9th Circuit and the other circuits.

    Consider the split of the 5th and 11th Circuits in 1981. Both circuits now have approximately 10% of the country’s population. The split has worked well.

  10. Kick California, Washington and Oregon out of the Union. Make it a more perfect Union.

    1. I say we stand a much better chance of improving the union, Jack, if we kick you out of it.

    2. COW will go if we can drag Idaho, Montana, Utah, Wyoming, Nevada, Colorado and New Mexico along with us.

      You can have Arizona as a consolation prize.

      1. David Benson – if Ann Coulter can’t make conditions with Cal-Berkeley, you cannot make conditions about COW leaving the Union. 🙂

          1. David Benson – COW leaving the Union is a tempest in a teapot, anyway. 😉

              1. David Benson – admit it, the thought of Gov. Moonbeam calling out the National Guard against the Marines and Navy, puts a smile on your face. 😉

  11. (music–)
    They say that breaking up is hard to do!
    I wanna know…
    What I can do.

    They say that they are breaking up.
    We know that they are making up.

  12. The ninth circuit should be broken up. Who’s going to do it, the Republicans!

  13. In the halls of justice, the only justice is in the halls.

  14. I agree with Squeeky, you can always judge shop. When I was a process server, I would be sent to particular judges to sign orders, file motions, esp TRO, etc.

    Also, the rest of us want OUT of the Ninth Circus. They are an embarrassment to the rest of us in the district. GET US OUT!!!!

    1. Paul, who are these “the rest of us”? I doubt you speak for everyone wo lives within the boundaries of the Ninth Circuit.

      1. dogfightwithdogma – Arizona has been complaining about the Ninth Circus for as long as I have been here. According to the local papers other Western states feel the same.

  15. The biggest problem I have with the 9th Circuit is that, due to a heavy caseload, it normally takes that Court 18 to 24 months to decide an appeal in a “normal” civil case of any substance from the date on which the notice of appeal is filed. That kind of delay should not be happening. Other Circuits move much more quickly.

  16. “Let me burst one bubble for people. It is entirely possible to shop a case to a particular judge. All you need is a friend in the clerk’s office.”

    “Any proof or are you just Making Stuff Up again?”

    How come the roboclone Benson uses a real individuals name? Because Robo Clone Collective is not really a merit badge in one’s mechanical life….

    Look at the two one from Squeaky and one from the imposter. Squeaky says “it’s entirely possible.” Benson ‘Got any proof.” That’s called reframing and one of the crappiest failed attempts to follow Yoda’s manual of regressive secular agent training I’ve yet to read.

    How did the anti Santa Claus suits get to ‘certain judges?’ How did the Same Sex issue get to a ‘certain Judge.’ How did the shared toilet pervert law’ get to certain judges? Just dumb luck of the draw? Or are they all Marxist Leninist perverts?

    The real point is where the hell did ONE individual get the power to amend the Constitution and overturn laws on a national basis and to go ‘outside’ the physical boundaries of their assigned area of interest?

    The Comrades in the ninth need to be broken up —-and entirely replaced I fail to see how they are upholding their oath of office except using cross fingers with one hand a MMF salute with the other.

    I have zero respect for them as indivduals or as an institution along with the unsupervised rogue courts of the 4th branch of government.

    1. Michael,

      Are you willingfullying ignoring that Squeaky pretty much claimed that this actually happens? You ignored for what appear to be rather convenient reasons for your rebuttal that later in her remark she wrote “If any of you think this does not happen…”, thus implying that it does, or at least that she accepts that it does. Calling for evidence to support such an implied claim is both a reasonable and justifiable act.

      1. Oops, damn I should copyread more carefully before hitting that post button. Replace my rather silly and stupid word “willingfullying” with willfully.

        1. I like “willingfullying”. I’ll use it now and again.

  17. Let me burst one bubble for people. It is entirely possible to shop a case to a particular judge. All you need is a friend in the clerk’s office.

    Here is how it works!

    The filing is given to a “friendly” clerk who does NOT immediately file mark receipt of the filing. Then, when the desired judge comes up in rotation, the file is time stamped and VOILA! You got the judge that you wanted.

    If any of you think this does not happen, then please keep on thinking that!

    Squeeky Fromm
    Girl Reporter

      1. On the advice of my lawyer, I respectfully decline to answer on the basis of the Fifth Amendment, which—according to the United States Supreme Court—protects everyone, even innocent people, from the need to answer questions if the truth might be used to help create the misleading impression that they were somehow involved in a crime they did not commit.*

        Squeeky Fromm
        Girl Reporter

        *PS: Doesn’t that sound better than the standard blurb which usually contains the phrase “might tend to incriminate me.”???

        1. Yes.

          But I take the reply to mean you are just Making Stuff Up again.

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