Political Editors / February 13, 2017

Splitting the Ninth Circuit Court?

Legislation has been introduced to break up the nation’s largest circuit.

Following the Ninth Circuit Court of Appeals ruling to uphold a stay on the implementation of Donald Trump’s temporary travel ban, much focus turned once again to one of the more controversial courts in the nation — indeed, what many conservatives perceive to be furthest left of the nation’s appellate courts. While the decision in question was clearly wrong, it’s also wrong to suggest that the Ninth Circuit’s decisions are the most reversed of all the nation’s appellate courts. Both the Sixth and Eleventh Circuit Courts have a higher percentage reversal rate, at 87% and 85% respectively, than does the Ninth at 79%. But honestly, all those numbers are quite deceptive due to the fact that only a small fraction of all rulings are accepted for review by the Supreme Court. The actual rate of reversals of all U.S. Circuit Court decisions is less than 0.24%.

That said, the Ninth Circuit Court does have problems. Aside from its markedly leftist skew, it is too big. It’s the nation’s largest court with a jurisdiction covering nine states and two island territories, 40% of the U.S.‘s land mass. It serves more than 61 million Americans, roughly 20% of the populace. Going back to 1941, there have been several attempts at splitting the court, but to no avail. In 2007, both Supreme Court Justices Anthony Kennedy and Clarence Thomas noted that there was a consensus among the highest court’s justices that the Ninth Circuit was too big, unwieldy and should be split.

It’s time for a fresh attempt. Arizona Republican Senators Jeff Flake and John McCain recently introduced legislation to split off six states, creating the Twelfth Circuit Court, and leaving the Ninth Circuit covering the states of California, Oregon, Hawaii, Guam and Northern Mariana Islands. Four Republican House Representatives from Arizona have submitted similar legislation as well. The need is much more significant now than it ever has been in the past, primarily due to time, population and an unbalanced significance when compared to the other circuit courts. It’s high time the nation added a Twelfth Circuit Court.

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