Westerners try again at opting out of 9th Circuit

By Jeremy P. Jacobs | 02/04/2016 07:25 AM EST

Western Republicans led by Arizona’s governor and members of Congress are making a renewed push to reshape a federal appeals court that has a liberal reputation, particularly on environmental cases.

Western Republicans led by Arizona’s governor and members of Congress are making a renewed push to reshape a federal appeals court that has a liberal reputation, particularly on environmental cases.

Three pieces of legislation were introduced yesterday that would rekindle a decade-old effort to reform the 9th U.S. Circuit Court of Appeals, based in San Francisco.

The 9th Circuit is geographically the largest circuit, covering roughly 20 percent of the country’s population. Consequently, it has an abnormally large caseload that can lead to drawn-out legal proceedings.


But it is also considered one of the country’s most liberal courts, especially on conservation issues. Most notably, it has upheld controversial environmental regimes, including California’s heavily litigated low-carbon fuel standard.

In part because of that record, the 9th Circuit also features a relatively high reversal rate when the Supreme Court decides to review one if its rulings.

Yesterday, Arizona Sen. Jeff Flake (R) and Rep. Matt Salmon (R) introduced legislation that would split up the 9th Circuit and add a new 12th Circuit.

"Swift access to the courts is one of the main tenets of the justice system, but an oversized and overworked 9th Circuit has Arizonans waiting too long for justice," Flake said in a statement. "Establishing an additional circuit would lessen that burden across the West and ensure that the people of Arizona finally get the swift access to the courts that they are entitled to."

The Flake-Salmon bill would move Arizona, Nevada, Montana, Idaho and Alaska out of the 9th Circuit and into the new 12th Circuit. That would leave Washington, Oregon, California, Hawaii, Guam and the Northern Mariana Islands in the 9th Circuit.

Republican Sens. Steve Daines of Montana and Dan Sullivan of Alaska introduced two similar bills yesterday. Their first measure would leave the 9th Circuit containing California, Hawaii, Guam and the Northern Mariana Islands; meaning Alaska, Arizona, Idaho, Montana, Nevada, Oregon and Washington would move to a new 12th Circuit.

Their second bill would mandate a commission to study the appeals court system to make it more efficient.

Daines and Sullivan pointed out that previous commissions, as recently as 1998, concluded that the 9th Circuit was overburdened. They noted that based on population represented, the 9th Circuit is 85 percent larger than the next-largest circuit.

Further, they highlighted that the 9th Circuit has 14,200 cases pending, three times more than the next-busiest circuit — the 5th U.S. Circuit Court of Appeals in New Orleans, with about 4,600.

Reversal rates

Changing the 9th Circuit has been a priority for Arizona officials for at least 10 years.

About a decade ago, former Sen. Jon Kyl (R-Ariz.) raised the issue, and Sen. Orrin Hatch (R-Utah), then chairman of the Senate Judiciary Committee, held several hearings on how to reform the court that featured academics, judges and politicians.

Nothing came of it, at least partly because splitting up the circuit would create myriad new problems, said Jonathan Adler, a professor at the Case Western Reserve University School of Law.

He agreed that the 9th Circuit is "unwieldy in size" but added that "the problem has been that it’s hard to see what to do about it."

"Arizona does not want to be under the thumb of a court that is dominated by California judges (with the tilt one would expect given California’s Senate delegation)," he said in an email.

Arizona Gov. Doug Ducey (R) has strongly supported Flake and Salmon’s efforts, penning a letter to House Speaker Paul Ryan (R-Wis.) and Senate Majority Leader Mitch McConnell (R-Ky.) last October urging them to take up legislation on splitting up the 9th Circuit.

In the letter and press releases, Ducey repeatedly stated that the 9th Circuit sees a high rate of reversals if its cases are taken up by the Supreme Court.

"The Ninth Circuit is by far the most overturned and overburdened court in the country, with a 77 [percent] reversal rate," Ducey said in a statement. "In 2010, it had three times as many reversals as most circuits had cases before the Supreme Court."

Those numbers, however, are slightly misleading.

For one, if the Supreme Court agrees to hear a case, it is more likely to reverse the lower court’s ruling than to uphold it.

According to statistics compiled by SCOTUSblog for the Supreme Court term that ended last June, the Supreme Court reversed 72 percent of the rulings it reviewed.

Secondly, once that is taken into account, the 9th Circuit’s record isn’t too far outside the norm.

In the last term, the Supreme Court did hear more cases from the 9th Circuit than any other court — 16, or about 21 percent of the court’s docket. It reversed the appeals court in 10 of those, making a reversal rate of 63 percent.

Other courts had higher reversal rates. The Supreme Court, for example, heard five cases from the Atlanta-based 11th U.S. Circuit Court of Appeals. It reversed the 11th Circuit’s decision in all of them.

The Supreme Court took up eight cases from both the 5th Circuit and the 8th U.S. Circuit Court of Appeals from St. Louis. The high court reversed a higher percentage of those rulings from both of those courts than it did for the 9th Circuit last year — 88 percent for the 8th Circuit and 75 percent for the 5th Circuit, which is generally considered among country’s most conservative courts.

Nevertheless, it is true that the 9th Circuit frequently has high reversal rates at the Supreme Court — historically reaching 80 percent in some years.

Liberal bent?

In environmental cases, the appeals court has issued several high-profile opinions considered pro-environment or pro-U.S. EPA. Some of those have been reversed when they reached the Supreme Court.

The 9th Circuit, for example, upheld California’s progressive low-carbon fuel standard in a case the Supreme Court so far has yet to wade into (E&ENews PM, Sept. 18, 2013).

In 2010, the appeals court upheld an EPA Clean Water Act enforcement action against an Idaho family. The Supreme Court unanimously reversed it in Sackett v. EPA two years later, ruling that the EPA order could be challenged in court (Greenwire, March 21, 2012).

And this year, the justices are reviewing a 9th Circuit decision upholding a National Park Service ban on using a hovercraft to hunt in a national preserve (E&ENews PM, Jan. 20).

With regard to Arizona, the 9th Circuit ruled against the state in an August 2014 Superfund cleanup case that was closely watched. The appeals court ruled that a lower court granted the state too much deference in accepting the terms of cleanup agreements for a contaminated landfill in Tucson (Greenwire, Aug. 14).

The Supreme Court declined to take up Arizona’s appeal of the case (Greenwire, Oct. 5, 2015).

That record, some attorneys said, makes it hard to look past the political motivations of the states seeking to leave the circuit.

"It’s judicial gerrymandering to achieve preferred results in environmental cases," said Pat Parenteau, a Vermont Law School professor.

When the last effort to reshape the 9th Circuit was taking place in Congress 10 years ago, 9th Circuit Judge Alex Kozinski, an outspoken Republican appointee who would later become the circuit’s chief judge, summed up the effort succinctly.

"You’d have to believe in the tooth fairy to say this has nothing to do with politics," the Seattle Post-Intelligencer quoted him as saying.