It has long been a dream of Republicans in mountain states to get their jurisdictions out from under the 9th Circuit Court of Appeals. They tried this at the beginning of George W. Bush’s presidency, and they’re trying it again now.
The 9th Circuit, which conservatives used to disparage more than they do now, includes all U.S. territories in the Pacific, plus Alaska, Hawaii, Washington, Oregon, California, Arizona, Nevada, Idaho and Montana. It is by a very long way the largest circuit geographically and in terms of population, and it has more than twice as many judges as the neighboring 10th and 8th Circuits.
Judges from the 9th Circuit are on Capitol Hill today making the case against the creation of a new 12th Circuit, which would split off Alaska, Washington, and all of the interior western states on that list into their own circuit. Presumably, this circuit would hear lots of cases about federal lands, water and mineral rights, and endangered species.
The judges raised many arguments that just don’t seem very strong. For example:
[Circuit Judge Carlos] Bea, who was appointed by former President George W. Bush, said it is important that their jurisdiction oversees as much as it does, because it minimizes the risk that law differs across Western-area cities.
“A decision by our Court binds courts and litigants in the whole Western area,” Bea said, using the law of intellectual property as reason to keep the jurisdiction together. “This minimizes the risk that the law of intellectual property — copyrights and trademarks, for instance — maritime trade, labor relations, employment discrimination, for instance — will be different in Phoenix, San Francisco or Seattle.”
The thing is, this is an argument for abolishing circuit courts altogether, which would be absurd. Why isn’t it just as much of a problem already that trademarks or employment discrimination could potentially be treated differently in Denver, Albuquerque, or Salt Lake (in the Tenth Circuit) than they are in nearby Phoenix, Boise, or Las Vegas (all Ninth Circuit)? Or that maritime law could be handled differently in Rhode Island (First Circuit) than in Connecticut (Second Circuit), let alone California (Ninth Circuit)?
In the relatively rare cases where circuits go in dramatically different directions, the Supreme Court usually takes a case and straightens everything out anyway.
A breakup of the 9th Circuit is unlikely to happen, if only because the 60 votes won’t be there in the Senate for a reorganization. But when you look at the figures, it’s a lot harder to justify the status quo than it is to argue for a change. Why should there be a federal judicial circuit that’s about twice as large, in terms of population, as any of the others, and which covers between 50 percent more to twice as many district courts as any of the others?
The fact that 9th Circuit’s decisions may or may not be objectionable, or that they are frequently overturned, is only part of the story, and perhaps a distracting one.
