The National Review
June 15, 2017
Andy Biggs & Bill Montgomery
Is Congress finally getting to the business of splitting the unworkable Ninth Circuit Court of Appeals? This has been a long-running debate spanning several decades, but one that is imperative to resolve if we are to provide equal and adequate access to justice for all.
The Ninth Circuit is the largest Circuit Court of Appeals in the nation. It contains nine western states in addition to Guam and the Northern Mariana Islands, with a total population of more than 60 million people. For comparison, that is double the population of the next-largest circuit court and is four times the size of the First and Tenth Circuits. It accounts for more than one-third of all pending appeals in the United States. It typically takes 15 months to resolve a case in the Ninth Circuit — more than twice as long as in the average circuit. Such conditions require that the Ninth employ a large number of judges. Today, it has 29 active judges and 19 senior judges — the most on any circuit court in the country. The U.S. Judicial Conference recently recommended that Congress authorize an additional five judges for the Ninth. Simply put, this court is too large.
A court of this unwieldy size delays access to justice for victims who are seeking closure for crimes committed against themselves, their families, or their friends. The Ninth Circuit accounts for more than 16 percent of pending criminal cases in the nation; a criminal appeals case in the Ninth Circuit takes an average of 14 months to resolve. In an amicus brief in the U.S. Supreme Court case of Ryan v. Washington, Arizona Voice for Crime Victims, Inc., noted the importance of an expedient appeals process by pointing out that “victims’ suffering is compounded and exacerbated by long delays between the commission of the crime and the imposition of punishment.”
These facts point to the obvious need for a division. However, many of the judges who currently sit on the Ninth Circuit wish to protect the status quo. The most intense opposition to division is coming from these judges. Three of them recently argued to the House Judiciary Committee that the circuit, as big as it is, somehow maintains judicial cohesion and administrative efficiency, which we argue is impossible given the sheer size of the circuit.
However, Judge Andrew Kleinfeld, who also sits on the Ninth Circuit, disagrees with his colleagues and provides practical reasons why such cohesion and efficiency cannot be attained. “Judges on the same court should read each other’s decisions. We are so big that we cannot and do not. That has the practical effect that we do not know what judges on other panels are deciding.” Beyond that, Judge Kleinfeld explained that “even if the decisions could be read, there are over 3,000 combinations of judges who may wind up on panels, so the exercise would not be worth the time.” Unfortunately, this dilemma will only get worse. As the population and case load in the Circuit continues to increase, a greater number of judges will be necessary to keep pace, which will further erode whatever judicial cohesion and administrative efficiency exist today.
As Congress continues to debate this matter, the opinions of judges in the Ninth Circuit should be just one consideration of many — but certainly not the most heavily weighed. U.S. Supreme Court Justice Anthony Kennedy agrees. In a statement before the House Appropriations Subcommittee on Financial Services and General Government in 2007, he stated: For some years, Congressman, I’ve taken the public position that the Ninth Circuit is too large and should be split. This is for the Congress to determine. I do not think it’s appropriate for the judges of the Ninth Circuit to lobby terribly hard against it, if the Congress wants to make that judgment.
There is historical precedent and constitutional authority for Congress to divide circuits that have grown too large, as Congress did in 1980. There is historical precedent and constitutional authority for Congress to divide circuits that have grown too large, as Congress did in 1980 when it removed states from the Fifth Circuit and created a new Eleventh Circuit. The American people elected Congress, not the judges of the Ninth Circuit, to oversee our court-systems structure and ensure that it provides equal and adequate access to justice for all.