It’s time to split the Ninth Circuit

Already large and unwieldy, the Ninth Circuit Court of Appeals, one of 11 regional circuit courts, has over 50% more judges than any other circuit court, 40% of the territory of the U.S. (covering the entire Western United States), and 20% of our nation’s population. The average U.S. Circuit Court has 13 judges. The Ninth Circuit has 29 and an additional 11 senior judges. Because of its burgeoning appellate caseload and sizable backlog, there is even talk of increasing that number. One senior Ninth Circuit judge has called the Ninth Circuit “the federal judiciary’s 800-pound gorilla.”

While there have been prior efforts to restructure the Ninth Circuit, one recent development may finally open the pathway to getting this done. Senator Diane Feinstein, an influential member of the Senate Judiciary Committee, was adamantly opposed to a Ninth Circuit split. With Senator Feinstein passing, one of the major obstacles to splitting the circuit has been removed.

Size matters when it comes to federal circuit courts. The paradigm of a federal appellate court, which hears most cases in panels of three judges, is one that is small enough that the judges regularly sit with each other on panels. This intimacy fosters collegiality, understanding of, and respect for conflicting points of view. It also leads to more consistent decisions. But the Ninth Circuit is so large that the judges infrequently sit on the same panels with each other, resulting in unresolved and undesirable inconsistencies in the law of the Ninth Circuit.

A circuit should also be small enough that it can resolve conflicting decisions of different panels with a true en banc panel—a case in which all the judges of a circuit court participate. “En banc” means all the judges hear and decide a case. This is what happens in every other federal circuit. But not the Ninth. The Ninth Circuit has been dysfunctional since Congress increased the number of judges from 13 to 23 in 1978. Because of its unusually large number of judges, the Ninth Circuit was required to adopt a rule that, contrary to the meaning of en banc, provided for 11-judge “en banc” panels, creating an absurdity in which fewer than one quarter of the Ninth Circuit judges, a majority of six of a Ninth Circuit en banc panel, can decide the law of the Circuit. The inability to have true en banc hearings has likely led to “en banc” decisions where the majority of the Ninth Circuit judges actually disagree with the smaller panel’s en banc ruling.

The recent Ninth Circuit decision in Johnson v. City of Grants Pass, 72 F.4th 868 (9th Cir. 2023) underscores the difficulty of developing a true Ninth Circuit-wide decision in cases of unquestionable importance. In a 2-1 decision, a panel of the Ninth Circuit held an ordinance permitting the removal of a person camping in a public park or on a sidewalk without offering shelter violates the Eighth Amendment’s cruel and unusual punishment ban. The Ninth Circuit rejected a petition for a rehearing en banc 14 to 13, even though 17 active and senior judges of the circuit would have voted for an en banc hearing. But even if one had been granted, the en banc panel would have been composed of 11 judges, with potentially six deciding the case.

In Duncan v. Bonta, 83 F.4th 803 (9th Cir. 2023), an “en banc” panel voted seven to four to stay a district court ruling holding California’s law banning magazines holding more than ten rounds violated the Second Amendment. Even though one of the judges has since retired, the Supreme Court has remanded the case back to the 11-judge panel where a majority of six judges will decide the law of the Circuit. These two cases happened to receive publicity. Many others don’t. It is well known by lawyers that panel conflicts in the Ninth Circuit are not resolved by its 11-judge en banc process for years, if ever.

Creating more manageable circuit courts that better fit the paradigm is not a political issue. Even though President Carter’s increase in the number of judges was overwhelmingly filled with appointments of Democrats, the Ninth Circuit is relatively balanced now, with 16 judges appointed by Democratic Presidents and 13 by Republicans.

Nor is splitting a Circuit court unprecedented. It has happened periodically as the number of judges needed to handle an increasing caseload surpasses the critical mass. In 1981, for example, the Fifth Circuit, which covered most of the South, was split in two, creating a new Eleventh Circuit encompassing most of the Southeastern states, including Florida, and reducing the Fifth Circuit to Texas and two nearby states. The Eleventh Circuit currently has 12 judgeships; the Fifth has 17.

California poses a challenge for splitting the Ninth Circuit. The 39 million people who live in California represent 58% of the entire population of the Circuit. Another Circuit paradigm is that every Circuit has more than one state. The Second Circuit, for example, covers only New York, Connecticut, and Vermont. There are a number of possible re-configurations, but one is to split the current Ninth Circuit so that California and Alaska would become the new Ninth Circuit, and the other 11 states would form a new Twelfth Circuit. Joining Alaska with California is not as strange as it sounds. Since statehood, Alaska courts have looked to California case law as their common law. This new Ninth Circuit would proportionally have 17 of the current 29 judgeships; the new Twelfth would have 12. This is the exact number of current judges in the two circuits that were created when the old Fifth Circuit split. And that split has worked well.