Should the Ninth Circuit be split?

Mostly unrelated to this week’s dramatic oral argument before a Ninth Circuit panel is the perennial question of whether the circuit itself has grown too large and should be split in two, separating most other Western states from California [Debra Saunders, Las Vegas Review-Journal]:

It’s so big that Congress has looked at bills to split the circuit since 1941, and it’s so big that none of those measures have succeeded.

This year, however, Sens. Jeff Flake and John McCain, both R-Ariz., see the possibility of success. They’ve introduced legislation to create a new 12th Circuit by peeling away six states — Nevada, Washington, Idaho, Montana, Arizona and Alaska. The slimmed-down 9th Circuit would continue to hear appeals from California, Oregon and Hawaii, as well as Guam and the Northern Mariana Islands….

The 9th Circuit is the only circuit to hold “en banc” — or full bench — hearings with 11 of its 29 judges [rather than the full number]. Olson has taken to calling the 9th Circuit “the court that’s not all there.”


  • One obvious question is why Oregon would remain in the Ninth while Washington becomes part of the 12eh.

    • Another. Seeing as California has about 12% of the US population, maybe it should have its own circuit? I would think it might have as many people as the 10th circuit and the newly formed 12th circuit…perhaps put together.

      • And if they really wanted to mess with California, they would split the state so that 1/2 (inland?) would go to one circuit and the other 1/2 (seaside) would go to the other. Maybe a north/south split would be interesting, too.

    • Masochism?

  • Does Congress have the authority to create a new Circuit through the legislative process?

    • Yes, as it did when it created the Eleventh Circuit in the Fifth Circuit Court of Appeals Reorganization Act of 1980 (Public Law 96-452).

    • Here is the first sentence of Article 3 of the US Constitution.

      “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”

      Notice that the only court specifically created by the constitution is the Supreme Court.

      Even there, the constitution leaves it up to the Congress to determine the size of the Supreme Court.

  • Walter, I don’t think it was a coincidence that the Eleventh, with its HQ in Atlanta, occurred when we had a President from Georgia and an AG who previously was an Atlanta law partner.

  • Can you imagine the fight if Congress tries to do it now? First they would fight, just because that’s what they do. And then the real fun begins when it come to appointing judges and watching all the heads explode.

    Whooooo Buddy.

    • The proposal, as I understand it, is to not add new judges, but to simply redistribute the existing 9th Circuit judicial positions across the 9th and the new 12th. To the extent that the circuit is overburdened and needs more judges to decide cases more quickly, that seems largely irrelevant to whether it is split into two administrative units. There are already four vacancies on the court (and 15 in the Ninth’s district courts) that could be filled right now in the interest of swift access to justice if the President and Congress so choose.

  • The more I think about it, the more I think if its going to happen, now is the time. With a Republican Congress and President, there’s really nothing to stop them since the filibuster for all but Supreme Court judges has been done away with.

    Don’t we live in interesting times.

  • Just to clarify, a decision to split an overlarge circuit in two does not necessarily imply that any new vacancies will be created for appointing judges. I believe in the case of the old Fifth Circuit, the existing judges simply joined whichever of the circuits included their own states. Through custom and courtesy the geographic composition of judges on a circuit already bears a rough proportion to the population and caseload of the constituent states, so the existing number of judges from non-California states probably should roughly match what would be needed in a non-California Twelfth Circuit.

  • I know that it’s too complicated to redraw the COA boundaries nationwide but they have serious problems. The First is basically greater Boston. Doesn’t even manage to cover all of Red Sox Nation. The Tenth looks like it was designed to cover the cavalry posts from John Ford’s movies. Maybe when we have a president and an overwhelming majority in Congress the circuit boundaries can be redrawn to reflect current population levels in America.