Bills
| 3.23.22

Should the 9th Circuit Court of Appeals be Split in Two? (S. 276)

Do you support or oppose this bill?

What is S. 276?

(Updated September 12, 2021)

This bill would split off part of the U.S. 9th Circuit Court of Appeals — which is the federal appeals court for Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington plus Guam and the Northern Mariana Islands — into a new 12th Circuit Court of Appeals. The 12th Circuit Court would cover Alaska, Arizona, Idaho, Montana, Nevada, and Washington, while the 9th would keep the other states and territories under its current jurisdiction. These changes would take effect one year after this legislation’s enactment.

When this legislation takes effect, the 9th Circuit would continue to deal with all cases that have already been submitted for a decision. Appeals or proceedings that haven’t progressed to that stage of the judicial process would be referred to the court that would’ve had jurisdiction over it had the new court existed at the time of submission, and all relevant records would be transferred to that court.

Argument in favor

The Ninth Circuit Court of Appeals as it’s currently structured is too large and has too heavy a caseload. With an average wait time of 15 months, citizens under its jurisdiction don’t have quick access to justice. Creating a new 12th Circuit Court of Appeals would ease the burden of both courts and ensure the judicial system functions efficiently for residents of western states.

Argument opposed

The Ninth Circuit Court of Appeals should keep its current jurisdiction despite it being a lot bigger than other circuits in terms of geographic size and population. Conservatives mainly want to break it up because they think it is staffed by too many liberal judges and has issued too many rulings that were eventually overturned by the Supreme Court.

Impact

Citizens under the jurisdiction of the 9th Circuit Court of Appeals and the to-be created 12th Circuit Court of Appeals; and the federal judicial system.

Cost of S. 276

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Sponsoring Sen. Jeff Flake (R-AZ) introduced this bill to continue former Sen. Jon Kyl’s  (R-AZ) effort to create a new circuit that covers Arizona by breaking up the “oversized and overworked U.S. 9th Circuit Court of Appeals.” He noted in a press release that the 9th Circuit hears over 12,000 appeals each year, and that the average wait time for a ruling exceeds 15 months, and added:

“A fair and functioning judiciary is one of the pillars of our democracy, but the oversized and overburdened 9th Circuit has Arizonans waiting too long for justice. Establishing a new circuit with stronger local, regional, and cultural ties will ease the burden across the West and ensure that the people of Arizona finally get the swift access to the courts they deserve.”

Flake also introduced this legislation during the 114th Congress, but it didn’t receive a vote. The current version of the bill has one cosponsor, Sen. John McCain (R-AZ).


Of Note: Congress has considered proposals to break up the 9th Circuit Court of Appeals dating back to 1941, as it is by far the largest circuit in the U.S. judicial system, which has 10 other circuits plus the D.C. Circuit and the Federal Circuit. Based on the 2010 census, it had more than 61 million people under its jurisdiction — far more than its nearest peer which had over 33 million — accounting for nearly 20 percent of America’s population.

The 9th Circuit has been jokingly referred to as the “Nutty 9th” or the “9th Circus” because the Supreme Court overturns a relatively high percentage of its rulings. According to statistics compiled from SCOTUSblog’s annual Circuit Scorecards, between 2010-15 the 9th had 79 percent of its rulings overturned by the Supreme Court, with only the 6th (87 percent) and 11th (85 percent) circuits surpassing it.

The 9th Circuit made national headlines when it rejected an appeal by the Trump administration to overturn a ruling that blocked the travel ban. The 9th could be called upon for an rehearing of the case, which typically include all of a circuit court's judges. Because the 9th Circuit has 29 judges that would be impractical, so 11 judges would be randomly chosen for the rehearing.


Media:

Summary by Eric Revell

(Photo Credit: U.S. Government / Public Domain)