The 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.