Arizona Attorney General Mark Brnovich and Ilya Shapiro on the case for breaking up the overburdened, overbusy Ninth Circuit, which can be made independently of the usual ideological concerns [Cato/WSJ] Because of the Ninth’s unique practice of forming en banc panels by randomly selecting 11 of its 29 judges rather than summoning the full number, I’ve referred to it in the past as “the court that’s not all there.”
8 Comments
The Ninth Circuit is a bad joke, and that has resulted in a large amount of lawlessness. See, e.g., the fact that Kim McLane Wardlaw opinions have been summarily reversed by per curiam opinion a staggering 5 times. (The question, of course, is what other mistakes has she made.) Reinhardt played cute with the record in a capital case, and the list goes on and on and on.
Thus, the Ninth Circuit should be subject to scrutiny. A lot of people make genteel-sounding arguments about political forces intruding into the judiciary–but, that’s a two-way street–courts don’t have free rein to impose their will by the combination of coercive judgments and precedent, and where they do so, political actors should not be restrained by such quaint notions.
The Ninth Circuit is a problem, and it needs to be addressed.
The raw numbers of 9th Circuit decisions that get overturned is not very meaningful. In terms of land are and population the 9th circuit is over twice the size of the next largest circuit court, with 11 geographical circuits, the 9th has 1/5h of the US population.
That the raw number of reversals is so high is simply a function of the fact that 9th circuit handles significantly more cases than any other circuit.
If you look at cases reversed / cases on which cert is granted by the Supreme court, The 9th circuit’s reversal rate is 79%, below both the 6th (87%) and the 11th (85%).
Note, the Supreme Court’s overall reversal rate on cases in which cert is granted is 70%.
If you look at total number of decisions issued by the 9th circuit / reversals by the Supreme Court, their reversal rate is below 1%.
The 9th may well be a joke, but you aren’t going to make that case out of their record at the Supreme Court.
MattS, I didn’t bring up reversal rates/record with the Supreme Court, although there, shall we say, some very curious results. I did bring up Kim McLane Wardlaw, and apparently you have no real answer for that.
As for the Sixth Circuit, the problem with reversals appears to be the Democrat-appointed judges, particularly with respect to AEDPA. so that’s not really a good defense. This points up a bigger issue–it’s not the Ninth Circuit or the Sixth Circuit–it’s the panels. Look at the history of Bobby v. Bies, a 9-0 Supreme Court decision. This was a Democrat judge problem, and any neutral observer would have to conclude that the Democrat judges on that case were really out to lunch–and the natural question is, “What other mistakes have these guys made?”
And it’s not the reversal rate either–a 5-4 decision really doesn’t say a lot about the underlying court of appeals decision. 9-0 decisions say a lot more. And per curiam reversals by opinion say even more, and the Ninth has had its fair share of those.
As for the 11th, a recent influx of Obama judges hurts the court as well. In a recent capital case, five Democrat judges decided that a stay in a capital case was required because the state wouldn’t disclose the manufacturer of a LI drug, even though the drug was tested for purity (making the identity of the manufacturer wholly irrelevant). Judges that can cast votes like that have absolutely no business being judges.
In which case your point is largely irrelevant to the issue.
Splitting the 9th circuit by it self neither creates new judgeships nor removes a single sitting judge.
Funny how you offer up a non-defense defense, then pivot.
You actually could reduce the Ninth’s power–by lliberating Idaho and Montana (Montana could go to the 8th Circuit) and Nevada could go to the Tenth, and then create new appellate judgeships in those circuits. Another solution would be to transfer appellate habeas corpus jurisdiction to another circuit.
But you are right that there is no way to rid the bench of some of these Democrat judges. Curious your views on the Democrat judges involved in Bobby v. Bies.
Funny how you offer up a non-defense defense, then pivot.
You actually could reduce the Ninth’s power–by lliberating Idaho and Montana (Montana could go to the 8th Circuit) and Nevada could go to the Tenth, and then create new appellate judgeships in those circuits. Another solution would be to transfer appellate habeas corpus jurisdiction to another circuit.
But you are right that there is no way to rid the bench of some of these Democrat judges. Curious your views on the Democrat judges involved in Bobby v. Bies.
@spo:
That seems like it would be a mess, moreso than just making a new circuit. Different circuits have different binding precedents. If you split the 9th into two circuits, both can use the existing precedent of the 9th. But other circuits have their own precedents which may differ, meaning the effective law in those states would suddenly change in multiple ways.
Cite for previous comment: http://www.politifact.com/truth-o-meter/statements/2017/apr/26/donald-trump/does-ninth-circuit-have-overturn-record-close-80/