“Unless judges are bound by the text of the Constitution, we will, in fact, no longer have a government of laws, but of men and women who are judges.” – President Ronald Reagan
The 9th Circuit Court of Appeals is not actually the most overturned court at present. That award currently goes to the 6th Circuit Court which serves Ohio, Michigan, Kentucky and Tennessee, with an 87% rate. The 9th Circuit Court comes in at third place with a 79% overturn rate. This is according to an examination of data from 2010-2015.
The Ninth Circuit’s overturn rate is somewhat overblown – but not by much. It’s true the Supreme Court actually reviews very few cases and the ones it selects are likely to be contentious. But that does not change the fact that the 9th Circuit Court of Appeals consistently ranks near the top for overturn rates. During the period of 1999-2008, a study by the ABA found the 9th Circuit ranked 2nd at 80.0% – placing behind the Federal Circuit Court which came in at 83.3%. The long-run average rate of reversal was 68% by comparison.
And the 9th Circuit is often reversed by a unanimous Supreme Court vote.
Another earlier, but longer-term study looked at the fifty years from 1953 to 2002. The study found consistent levels of judicial activism at the 9th Circuit:
“Over the past fifty years, the Ninth Circuit, the largest circuit court in the country, has been reversed by the U.S. Supreme Court an average of 10.78 times per term. The next closest circuit, the Fifth Circuit, which is also the second largest circuit, was reversed an average of 7.42 times. The frequency of the Ninth Circuit’s reversals has been even greater in recent times: over the past twenty-one Supreme Court terms (since the Fifth Circuit was split), the Ninth Circuit has been reversed an average of 14.48 times, with the next closest circuit (the “new” Fifth) reversed 5.14 times per term over the same time period.”
“Criticism of the Ninth Circuit also focuses on the frequency with which the reversal by the Supreme Court is unanimous. It is also clear that the number of unanimous and nearly unanimous reversals for the Ninth Circuit is astonishingly high; the Ninth Circuit’s proportion of lopsided reversals is greater than its proportion of reversals decided by a closer vote. Even if one accounts for the workload of the Ninth Circuit, the frequency with which the Ninth is reversed is a statistical anomaly.
[A study by Professor Arthur Hellman concluded] “there is a wide gap between the Supreme Court’s perception of the Ninth Circuit panel decisions that are both wrong and important and the perception of the Ninth Circuit’s own judges.” Hellman suggested that the source of this perceptual gap is ideological disagreement between the Ninth Circuit decision and the intention of the Supreme Court.
“The Ninth Circuit is liberal on a broader level. Between 1990 and 1996, the Ninth Circuit reached the liberal outcome 41.2% of the time, a proportion neared only by the Second (39.9%) and the District of Columbia (39.2%) Circuits. By comparison, the Fifth, Seventh, and Eighth Circuits all rendered liberal decisions less than 23% of the time. The liberalism of the Ninth Circuit is not particularly new: since reaching a low point of 26.9% in 1978, it has only once dropped as low as 30%.”
And the 9th Circuit Court of Appeals certainly has the largest influence and impact of the Circuit Courts – a result of its geographic and population coverage, its political makeup – and the outsized influence California exerts on its structure.
It was a 9th Circuit Court judge from Seattle who blocked President Trump’s initial Travel Ban on February 3, 2017 and it was a 9th Circuit Court judge from Hawaii who blocked President Trump’s revised Travel Ban on March 15th. As I discuss in Judge Orrick’s Judicial Activism, the judge who granted an injunction against President Trump’s Sanctuary City Order was actually a federal trial judge from San Francisco, an Obama nominee who sits on the US District Court for the Northern District of California, not the 9th Circuit. But the 9th Circuit’s influence is felt here too. Judge Orrick’s court follows the precedents of the 9th Circuit. And Judge Orrick’s ruling would be heard by the 9th Circuit Court of Appeals should an appeal be filed.
The 9th Circuit Court is massive. It covers nine states – Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington plus the territory of Guam. It has Court of Appeals locations in Anchorage, Honolulu, Pasadena, Portland, San Francisco and Seattle – although year-round hearings are only held in Pasadena, San Francisco and Seattle. Its legal structure includes the 9th Circuit Court of Appeals and district and bankruptcy courts in 15 federal judicial districts. The 9th Circuit Court of Appeals has 29 judgeships with 25 active judges and 4 vacancies. District Courts within the 9th Circuit have 112 judgeships with 16 vacancies. Its caseload is equally massive with 11,866 appeals filed in 2016 and 13,152 appeals pending.
The 9th Circuit covers 20% of the population and 40% of the land mass of the United States. The reason dates directly to its formation. The 9th Circuit was created in 1891 – at a time when only 4% of the population lived in the area despite its geographically large size. The population makeup has changed but the jurisdiction of the 9th Circuit has not.
And that has created some real problems. 25 judges control the Appeal Process for 20% of the population. That is an enormous percentage of America’s population to fall under such a small number of judgeships – and judgments. The magnitude of judicial sway and power is unsettling. It also means an enormous delay. The 9th Circuit Court typically has about a 15 month wait time for decisions.
More importantly, the 9th Circuit Court of Appeals is very liberal in makeup. Eighteen of the twenty-five judges have been appointed by Democrats.
And California holds an undue influence over the court’s entire structure. California holds over half of the Ninth Circuit’s population. Most of the 9th Circuit judges and staff live and work in California. The majority of its hearings take place in San Francisco or Pasadena. Cases from California dominate the court’s dockets. The liberal character of California permeates the entire structure of the 9th Circuit Court. It is no surprise that the overturns of Trump’s travel bans have stemmed from the 9th Circuit.
And as noted by Arizona Governor Doug Ducey, long a 9th Circuit critic;
“The 9th Circuit is so large that, unlike any other circuit, it almost never sits as a single body, even for the most consequential cases. Whereas every other circuit regularly meets as one court to clarify inconsistencies in law, the 9th Circuit selects 11 of its 29 judges to set circuit-wide precedent. That means only a third of its judges are deciding the law for the whole court.”
It was the 9th Circuit Court of Appeals that ruled that the Pledge of Allegiance is unconstitutional for its use of the phrase “under God,” and that individuals have no constitutional right to own guns. I guess they missed the part about the “right to bear arms” contained in the Second Amendment of the Constitution. Even the left-leaning Los Angeles Times has noted the 9th Court’s liberal stance:
“During the next 30 years, the 9th Circuit would continually draw the right’s enmity with high-profile, left-wing decisions. Some of the 9th Circuit’s most controversial rulings have related to criminal law, especially the death penalty. In 1992, it waged an all-night duel with the Supreme Court over the execution of convicted murderer Robert Harris, issuing stay after stay, each one reversed by Supreme Court justices until they ordered the 9th Circuit to stop. Between 2006 and 2009, the 9th Circuit threw out the capital sentence of convicted murderer Fernando Belmontes three times, with each decision overturned by the Supreme Court. In 2011, when the Supreme Court once more reversed the 9th Circuit on a capital punishment case, it accused the appeals court of exhibiting “judicial disregard” for “sound and established principles” of law — which is about as catty as it gets in the marbled hallways of the federal appellate judiciary.”
“It has ruled in recent years that the 2nd Amendment does not confer the right to carry a concealed weapon and that undocumented immigrants who are arrested have a constitutional right to a bond hearing.”
In one famous opinion, the Supreme Court rejected a 9th Circuit reasoning simply with one word – “No”. And, of course, the Supreme Court has reversed the 9th Circuit by unanimous opinions a multitude of times.
At least in part, the roots of the 9th Circuit’s liberal bent stretch back to Jimmy Carter who appointed 15 of the then 23 judges. As famously noted by former Chief Judge Alex Kozinski, they included “some of the most liberal judges ever, to any court”. Amongst them were Judge Stephen Reinhardt, who struck down Arizona’s “English-only” constitutional provision and Harry Pregerson who famously informed the Senate during his confirmation hearing that between the law and his conscience, “I would follow my conscience.” The very definition of Judicial Activism.
Our country has been plagued with liberal judges – and Judicial Activism. And the problem does not stop at the 9th Circuit. Again, from the Los Angeles Times; “The 11th Circuit, based in Georgia, is now more heavily Democratic [than the 9th]. The 4th Circuit, based in Virginia, has further left-leaning Obama appointees.”
As I see it, there are at least five primary problems with the 9th Circuit Court of Appeals:
- Size and Concentration – 25 active 9th District Court of Appeals judges over a population of 65 million or 2.6 million citizens per judge
- Political makeup/Activist Judges – 18 of 25 judges appointed by Democrats or 72% – exemplified by reversal rate
- Political, ideological and caseload sway of California – the vast majority of court personnel, operations and caseload are in California
- Circuit-wide precedent setting by roughly one-third of judges (eleven of twenty-nine judgeships – 25 judges currently active)
- Case backload and delay times – 15 month wait time for decisions
The 9th Circuit Court also highlights the importance and national impact – the political and societal influence – of appointing judges. By 1980, President Carter fundamentally transformed the 9th Circuit Court with his appointment of 15 of the then 23 judges. These judges have, for the most part, been with us ever since. And their transformational impact has been astonishing. For those old enough to recall, think of the sweeping ideological changes that have transpired in California during this period. The 9th Circuit has played an outsized role in that transformation.
There are currently 4 vacancies on the 9th Circuit Court of Appeals and 16 vacancies at the 9th Circuit District level. It is crucial that President Trump fill these vacancies with judges who exhibit judicial restraint and respect for our Constitution. Judges who honor and interpret the law – not write it. For that may be the only way to restrain the zealousness of the 9th Circuit.
There have been attempts to break up the 9th Circuit into smaller pieces – led recently by Arizona Governor Doug Ducey. But my guess is this remains a long-shot as the decision would ultimately need to go through Congress – and Democrats would surely make all efforts to block such a move. But the idea has merits for the very reasons I have listed.
Breaking up the behemoth that is the 9th Circuit Court of Appeals is a long-shot worth trying. Appointing judges with honest respect for the law and the Constitution is even more important. Judges who understand their job is to interpret the law – not to write it.
In closing, I once again quote President Ronald Reagan:
“The role assigned to judges in our system was to interpret the Constitution and lesser laws, not to make them. It was to protect the integrity of the Constitution, not to add to it or subtract from it — certainly not to rewrite it. For as the framers knew, unless judges are bound by the text of the Constitution, we will, in fact, no longer have a government of laws, but of men and women who are judges. And if that happens, the words of the documents that we think govern us will be just masks for the personal and capricious rule of a small elite.”
older post Judge Orrick’s Judicial Activism