Break Up the Ninth Circuit

20 Pages Posted: 12 Mar 2019

Date Written: March 5, 2019

Abstract

The U.S. Court of Appeals for the Ninth Circuit has long been a target for those who view the court as out of step with the rest of the nation’s federal appellate courts. Conservatives have been particularly critical of the Ninth Circuit for its ostensibly liberal leanings and rebellious abandonment of precedent. Others have criticized the circuit’s disproportionately large caseload and apparent inability to resolve appeals at the same rate as other circuit courts. Although the Ninth Circuit began as one of the least prolific appellate courts, its docket now hosts one fifth of the nation’s federal appeals. Tracing back to the 1970s, there have been recurrent calls to divide the court into several smaller circuits. Such efforts have been met with resistance from those who believe dividing the circuit is merely a politically motivated scheme to dilute the court’s liberal composition—though the court’s tilt is much more a function of history (many judgeships added and filled under President Carter) than geography. In dispelling the critiques often raised by opponents, this Article maintains that the Ninth Circuit should be split into several smaller circuits—but not because of its ideological composition. Splitting up the Ninth Circuit makes perfect sense when looking to the court’s unwieldly size, procedural inefficiencies, jurisprudential unpredictability, and unusual en banc process. The untenable nature of the Ninth Circuit’s current configuration supports the proposition that Congress should finally adopt one of the many reasonable proposals for reorganizing the court.

Keywords: Ninth Circuit, judges, appellate law, jurisprudence, court administration

Suggested Citation

Shapiro, Ilya and Harvey, Nathan, Break Up the Ninth Circuit (March 5, 2019). George Mason Law Review, 2019, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3347324

Ilya Shapiro (Contact Author)

Cato Institute ( email )

1000 Massachusetts Avenue, N.W.
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HOME PAGE: http://www.cato.org/people/ilya-shapiro

Nathan Harvey

Cato Institute ( email )

1000 Massachusetts Avenue, N.W.
Washington, DC 20001-5403
United States
8632244913 (Phone)

HOME PAGE: http://https://www.cato.org/people/nathan-harvey

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