Should the Ninth Circuit Be Broken Up?

Perhaps the most maligned court in the federal judiciary (among conservatives) is the San Francisco-based Ninth Circuit Court of Appeals. It is viewed as a bastion of liberalism in an almost anything-goes legal free-for-all. But first, a little about the organization of the Circuit courts that may help explain where the problem begins. The United States is divided up into eleven circuit courts of appeal, plus the Federal Circuit and the DC Circuit. The Federal Circuit is unique in that it handles cases like some bankruptcy, international trade and patent cases. The DC Circuit is, as the name suggests, located in the nation’s capital. Since it is the seat of government, if someone wants to sue a department of the US, that suit is usually filed here. The DC Circuit, because of the nature of the cases taken, is considered the premiere appellate court and stepping stone to the Supreme Court.

The other circuit courts are numbered one through eleven and are geographical in nature. Their role is to hear appeals from trials in the lower District Courts within those circuits. Depending on the size of the state, they can have anywhere from one to as many as 4 district courts per state. New England, a small geographical region and also relatively small in population, is divided across two circuits- the 1st and the 2nd (additionally Puerto Rico is in the First Circuit). Together, these two circuits encompass 11.3% of the US population. Conversely, the Ninth Circuit is spread across nine very large states taking in close to 20% of the US population.

Rearranging the circuits based on population creates logistical problems, especially in keeping them contiguous. For example, we could divide the population of the US by 11 and say that a circuit should have an ideal population of 28 million. Fitting contiguous states into that ideal is almost impossible. California alone exceeds that threshold and would have to be a circuit unto itself and still exceed the ideal population by 9 million. Additionally, different circuits have appeals somewhat unique or more common to them. For example, one would not think that Connecticut, a relatively low population state, would generate too many appeals. Because there are so many insurance companies domiciled in that state, they generate a greater proportion of appeals involving ERISA, a federal law that governs pensions and insurance. Delaware is another very small state, but because so many companies are incorporated there to take advantage of tax breaks, they generate a lot of suits against corporations. You will not find too many Indian reservations in the Middle Atlantic states, but you will in the 8th Circuit. Plus, because the Voting Rights Act of 1965 involves the federal, not state courts, the 4th, 5th, and 11th Circuits hear appeals involving that law. While it is true that the DC Circuit remains an option for pre-clearance under the VRA of 1965, individual suits against covered jurisdictions are brought in the district courts within the circuits with appeals going to the Circuit Court, not DC court.

Because of its large population, the laws of probability suggest that they will be the busiest Circuit Court. In fact, the 9th Circuit, in terms of population, is almost twice as large as the next most populous Circuit (the 11th). When it comes to the number of appeals considered yearly, that trend is seen. For example, in the period ending 3/31/11, the 11th Circuit received 6,290 appeals while the Ninth received 11,975 appeals, almost double the amount of the 11th. Conversely, the least populous Circuit- the First- received only 1,481 appeals. If you examine, however, the number of appeals per capita for each Circuit, the picture is a little different. Ironically, the highest per capita rate of appeals is in the least populous 1st Circuit and the rate in the Ninth Circuit would actually be below the average per capita rate for the eleven circuits.

One major complaint against the Ninth Circuit is the number of times their decisions are reversed by the Supreme Court. It is true that since 2004, the Supreme Court has decided on 141 cases originating in the Ninth Circuit. No other circuit even exceeds 50 cases. The next closest category are state supreme court decisions on appeal to the Supreme Court with 90 cases. Reversal rates are tough to use as a gauge. For example, the US Supreme Court takes somewhere between 70 to 80 cases a term. Considering that they entertain about 10,000 appeals a term, the odds of them taking a case on appeal is an extremely rare event. In 2010, the Supreme Court took 26 appeals from the 9th Circuit. Assuming just one quarter of the average number of cases taken in that Circuit are appealed to the Supreme Court, that would be about 3,000 cases. If they took 26 of them, that would be 0.9% of all appeals from the Ninth Circuit. When the Supreme Court does not take a case, they effectively let the lower court decision stand. Looked at this way, we can also say the Ninth Circuit is “summarily” affirmed 99.1% of the time on all appeals. Using the same criteria, the rate of affirming decisions of the 1st Circuit would be lower than the Ninth Circuit at 98.9%.

As far as Supreme Court cases actually taken, the Ninth Circuit accounts for 24.8% of all reversals since 2004. But then again, that Circuit is also responsible for 22.9% of all appeals taken by the Court. The average reversal rate over that period (from the 2004 through the 2011 term) is 70%. Five of the 15 classifications of lower courts exceed that average. They are, in order: Sixth Circuit (78.7%), Federal Circuit (77%), Ninth Circuit (75.9%), state supreme courts (74%) and direct appeals from district courts (73%). Incidentally, the lowest rate of reversal is out of the First Circuit at 52.6%.

So, although the Ninth Circuit ranks up there as being “outside the judicial mainstream,” at least as far as Supreme Court reversals go, they are not the worst. Looking at the Presidents who appointed the current crop of federal appeals court judges, 48.8% of the total were appointed by Democratic presidents (Obama, Clinton, and Carter). Those Circuits where the composition of the circuit exceeds 60% Democratic appointment are the 2nd, 4th and 9th. Yet, the Supreme Court reversal rate out of the 2nd Circuit is 70.5% and 62.1% for the 4th Circuit. Looking at the individual judges on these courts, one thing stands out between the high rate of reversals on the 2nd/9th circuits as compared to the below average rate for the 4th Circuit. None of the justices on that court of appeals received their legal degree from an Ivy League school.

There is the mistaken impression that the Ivy League produces a disproportionate number of federal judges. This then leads to charges of elitism and liberalism. It is true that all of the Supreme Court Justices received their law degree from an Ivy League school. However, as concerns all the federal appeals court judges, 24% received their degrees from the Ivy League. The most common source of law degrees is the state college systems throughout the country at 37.1%. So using 37.1% state-college system law degree source, we have a baseline to determine if that has an effect on reversal rates. Four federal appeals court categories exceed the 50% rate: the 4th, 6th, 8th, and DC Circuits. The rate of reversal among those circuits is 66.8%. Among the four circuits with the highest concentration of Ivy League educated judges, the reversal rate is 68.9%. Hence, the charges of elitism or education at liberal Ivy League schools being the cause of being “outside the judicial mainstream” is false.

As concerns the Ninth Circuit, leaving aside the option of splitting it geographically apart, past efforts to “improve” that Circuit have been to increase the number of judges. They are, by far, the most numerous in this category at 29 (two current vacancies). For comparative purposes, the First Circuit has only 6 judges (one current vacancy). Increasing the number of judges may spread out the current case workload and speed up the process, but it will not change anything else.

One way to decrease the caseload which may create more considered opinions at the appellate level is to look at the nature of the appeals. Administrative appeals alone account for 23% of all appeals. Perhaps, that is the motivation behind recent Supreme Court jurisprudence where deference is shown towards the arbitration process over the legal process. It is also the source of liberal criticism saying the Court is blocking the courthouse door to average Joe’s. Taken together between state and federal prisoners, they account for 21% of all appeals. Again, recent Supreme Court jurisprudence is giving greater deference to state court habeas petitions and there is less liberal rancor here. Where the Ninth Circuit significantly deviates from the national average is in the number of state prisoner appeals although they are considerably under the average for criminal appeals. And the amount of original jurisdiction appeals- where state law potentially runs counter to federal law- is higher than the national average.

It would appear that the main problem with the Ninth Circuit involves most likely California itself. They have the greatest rate of appeals to the Ninth Circuit and it is California law and interpretation of California law by California-based courts- federal and state- that create the inordinate number of cases that end up before the Supreme Court and ultimately reversed. Fix California and you fix the bulk of the alleged problems with the Ninth Circuit.

Now since District Court judgeships or state judgeships are the usual feeder system to the federal appeals courts, the tendency based on long-standing tradition and Senatorial courtesy dictates that District judges come from the state in which the district lies. For example, a New York District judge is likely to be elevated to fill a vacancy on the 2nd Circuit rather than a judge- federal or state- from Alabama. The result is that once elevated to the federal appeals court level, their judicial leanings roughly approximate the political leanings of the states. A judge elevated to the Tenth Circuit from Wyoming is likely to be conservative while a judge from California is more apt to be liberal.

Most appeals court judges aspire to the DC Circuit, yet very few of those judges hail from DC. And there lies perhaps the best solution. It is understandable that long-term tradition and Senatorial courtesy extend to the District Court judge level. However, provided the nominee is willing to relocate, there is no reason that a judge on a District Court in one circuit need be elevated solely within that circuit. This is predicated upon the view that sometimes an “outside voice” can have unforeseen benefits. Instead of arguing about law school diversity among federal judges, a better solution is geographical diversity. If a judge from Alabama is willing to accept an appeals court nomination in the Ninth Circuit, they should be considered, and vice versa. That is, the pool would be widened, much like it is regarding the DC Circuit or the Federal Circuit. Ethnic diversity or the number of women judges makes little to no difference. There are conservative black and Hispanic judges and most of your liberal judges are white. The best solution to the alleged problem and perceptions of the Ninth Circuit is to “import” judges from outside the liberal west coast area.