The Ninth Circuit: A Tiresome Trope

Mark Rubin

The United States Court of Appeals for the Ninth Circuit exists. For real! But it’s also a tiresome trope, and just the sort of stand-in you’d expect from Tiresome Trump our president, Donald J. Trump.

Last week’s rant was just that: a rant. POTUS didn’t like a decision from a U.S. District Court judge from California, one of the states which comprise the Ninth Circuit. So, “Obama judge” and this gem, from a 5:21 a.m. tweet on Thanksgiving Day:

Justice Roberts can say what he wants, but the 9th Circuit is a complete & total disaster. It is out of control, has a horrible reputation, is overturned more than any Circuit in the Country, 79%, & is used to get an almost guaranteed result. Judges must not Legislate Security…

I’m not offering a detailed stats-based analysis. No need for it.

Here are some basic facts, along with just a few statistics:

1. Federal Court Jurisdiction. U.S. District Courts only hear cases involving the U.S. Constitution or federal statutes, and cases which involve at least $75,000 of claimed damages and parties from different states. Most cases never get filed in federal court.
2. Appellate Court Jurisdiction. Federal circuit courts—there are 12, 11 by number and the D.C. Circuit—hear appeals from U.S. District Courts within their circuit. They take all cases, and in most instances a three-judge panel decides the case. Luck of the draw rules, and even when a circuit court hears a case en banc—the whole bench—the whole bench is just a portion of the sitting circuit judges.
3. Supreme Court Jurisdiction. But for a few rare situations, the Supreme Court picks and chooses its cases. It focuses on matters in which circuit courts have reached differing decisions and matters of significant interest. And, as it with the highest court in most states, the Court takes cases which it will probably reverse. The Court doesn’t take cases to tell circuit court panels they got it right.
4. The Ninth Circuit. The Ninth Circuit includes nine states, plus Guam and the Northern Mariana Islands. Total population? 61,742,908, per the 2010 U.S. Census. Roughly one in five Americans live within the Ninth Circuit boundaries, making it about two to three times larger than the next comparable circuit. Why so big? California, and the fact that when it got created in 1891 not so many people lived in the still wild, wild West.

So, what? Too many blame the Ninth Circuit for many ills. It’s a big operation which hears lots of cases. In lesser cases, inconsistencies exist on some legal issues, because three judge panels don’t always see issues in the same way. That’s a real problem, but not one that gets discussed very often. Instead, we hear about the reversal rate and “liberal” decisions.

The Supreme Court caseload includes, in most years, several Ninth Circuit cases, and it reverses about 80% of the cases it takes from all circuits. Nothing to see hear. First, if a court serves 20% of Americans, you’d expect the Supreme Court to take a fair number of its cases. Second, with a Court which reverses four out of five cases, you’d expect a similar reversal rate. And that’s what happens in fact, and if someone disagrees, bring the link which supports the claim to the comment section.

As for “liberal” decisions, dividing the court will solve no claimed ills. The judges have lifetime appointments and will call them as they see them until they can’t.

The Ninth Circuit got big, mostly, because California grew. If Congress split off California, or it left California and Arizona together, that circuit would still be larger than the 11 other circuits. Dividing California doesn’t work, because we’d get inconsistent results for the state, and would invite lots of forum shopping within the state. (Forum shopping involves picking a court, in order to improve the chances for a favorable ruling.)

Those who rail against the Ninth Circuit should consider two more facts. First, until the late 1960s, California regularly voted for R presidents and sent Rs to Congress. The Chandler family, owners of the Los Angeles Times, ruled Southern California—where most people in California lived, and still live—and they ruled from the Right. Perspectives change with time!

Second, most of any circuit court caseload looks and smells very vanilla. Criminal cases mostly, along with business disputes and the like. We ought to keep that fact in mind before we let a few high-profile cases and a know-nothing POTUS change what ain’t broken.