The ADN published a commentary on Aug. 7 titled "Breaking Up the 9th Circuit Court Would Improve Access to Justice," written by U.S. Sen. Dan Sullivan. I recently had the pleasure of joining Sen. Sullivan as a special guest speaker at a naturalization ceremony at the James M. Fitzgerald U.S. District Courthouse in Anchorage. Although we agree that naturalization ceremonies are among the most enjoyable proceedings in federal court, I disagree with the senator's proposal to split the Ninth Circuit.
Sen. Sullivan contends that the Ninth Circuit is "simply too big to provide equal justice under the law." The federal courts of appeals have long been the subject of intense study and debate, primarily because of concerns generated by the dramatic and persistent growth in federal appellate caseload. The Ninth Circuit — the largest of the 11 circuits in terms of geographic size, population served, number of authorized judgeships, and total annual caseload — has often been at the vortex of the debate. Detailing his concerns about the size of the Ninth Circuit, Sen. Sullivan quoted U.S. Supreme Court Chief Justice Warren Burger, who, in 1970, cautioned that inefficiency and delay could destroy public confidence in our court system.
After an exhaustive study on circuit size conducted in 1972 by a special commission, however, Congress declined to divide the Ninth Circuit and instead adopted other commission recommendations. The Ninth Circuit chose to implement two of the commission's key recommendations by substantially increasing the number of authorized judgeships in the circuit and authorizing the circuit to use limited en banc (full court) panels. As a result of these efforts, in 1990 the American Bar Association reversed its stance in favor of division, and thereafter opposed dividing the Ninth Circuit. The ABA stated that procedural changes implemented during the preceding decade had, in conjunction with other court managerial innovations, given the Ninth the tools it needed to handle rising caseloads without sacrificing quality or timeliness. In short, the hallmarks of the modern Ninth Circuit — innovation, technology, and progressive management techniques — saved the Ninth from division, and in the process saved taxpayers millions of dollars.
Proposals to divide the Ninth Circuit have continued to resurface. In response, the ABA has periodically reviewed the status of the court, and has not wavered in its opposition to division. The perceived problems identified by supporters of the legislation do not justify restructuring and would not be remedied by any of the proposed circuit divisions.
In 1993, at the behest of the Congressional Federal Courts Study Committee, the Federal Judicial Center conducted a 15-month examination of the appellate court system and issued a report titled "Structural and Other Alternatives for the Federal Courts of Appeals." The report concluded that the expansion of federal jurisdiction without an accompanying increase of resources created a burden for the federal courts of appeals that would not be significantly relieved by structural changes to the appellate system. In other words, the problems facing appellate courts (including the Ninth Circuit, as discussed by Sen. Sullivan) would not be solved by simply creating another circuit.
Furthermore, in 1998, the Congressional Commission on Structural Alternatives for the Federal Courts of Appeals completed another detailed study and concluded:
"There is no persuasive evidence that the Ninth Circuit (or any other circuit for that matter) is not working effectively, or that creating new circuits will improve the administration of justice in any circuit or overall. Furthermore, splitting the Circuit would impose substantial costs of administrative disruption, not to mention the monetary costs of creating a new circuit. Accordingly, we do not recommend to Congress and the President that they consider legislation to split the Circuit."
Since the 1990s, efforts to split the court have continued, including the recent legislation proposed by Sen. Sullivan. However, there have been no new developments that justify the division. As recently as August 2017, the ABA again came out in opposition to proposals to split the Ninth, stating that, contrary to often-repeated statements, the rate of reversal of Ninth Circuit decisions by the Supreme Court is not the highest of all the circuits, and that there is no evidence that size has any bearing on reversal rates:
"The Supreme Court, not surprisingly, reverses more cases than it affirms. According to an analysis by Politifact, between 2010 and 2015, the Supreme Court reversed about 70 percent of the cases it reviewed. During the same time period, 79 percent of the Ninth Circuit cases were reversed, and the Sixth Circuit, with a reversal rate average of 87 percent, had the highest reversal rate. (The ABA's) review of reversal rates, as reported by SCOTUSblog, confirms these statistics. Further proof that reversal rate has nothing to do with the size or volume of cases decided by a circuit is readily apparent when one reviews reversal rates year-by-year; there simply is no discernable correlation."
Look at it this way: in 2015 the Ninth Circuit issued 6,551 decisions. Eleven of those cases were reviewed by the U.S. Supreme Court and eight were reversed, meaning that more than 99.9 percent of the Ninth Circuit rulings were left in place.
In 2017, the ABA applauded "the Ninth Circuit's initiative, willingness to innovate, and determination to reduce its case backlog. The Ninth Circuit continues to cope admirably with its rising caseload without jeopardizing the quality or consistency of justice rendered."
The Federal Bar Association is also opposed to splitting the court. In May 2017, the FBA issued its official statement finding that proposals to split the Ninth Circuit are "unnecessary, costly and not in the interests of the efficient administration of justice." While recognizing that a small number of judges and lawyers may differ, the FBA noted that the vast majority of its 19,000 members, including hundreds of federal judges, share deep concerns about the idea of splitting the court. The FBA concluded:
"The duplicative overhead costs and expenditure of additional taxpayer dollars that would arise in any new split arrangement do not necessarily promise any 'better' justice than is available today. In fact, greater legal risk and uncertainty, with added economic costs, may occur when the law in portions of the American West becomes more fractured due to disagreements between the jurisprudence of the Ninth Circuit and a newly-created Twelfth Circuit."
Sen. Sullivan's proposed legislation was co-sponsored by Sen. Steve Daines of Montana. At the recent annual Ninth Circuit Judicial Conference in Anaheim, California, I met with another Montana resident – Sidney R. Thomas, the current Chief Judge of the Ninth Circuit. Chief Judge Thomas opposes a split and has said that "delay would increase substantially if the court were split. I think everyone recognizes that the Ninth Circuit is a leader in technological and case management innovation." In fact, the past three chief judges of the Ninth have all opposed a split. It is also notable that the Ninth's disposition times have steadily improved over the past decade. In 2017, Chief Judge Thomas reported that case processing time has been reduced by almost 35 percent during that period.
In sum, Sen. Sullivan's current proposal to split the Ninth Circuit is opposed by the vast majority of stakeholders, including federal judges, lawyers, and litigants, would not improve the efficiency and effectiveness of the court, and is not in the best interests of the citizens of Alaska.
Darrel J. Gardner was born and raised in Anchorage. He is a federal Public Defender for the District of Alaska. Mr. Gardner is the immediate past president of the Alaska Bar Association; past president of the Alaska Chapter of the Federal Bar Association; and current national Vice President of the Federal Bar Association for the Ninth Circuit. This commentary is Mr. Gardner's personal opinion.
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