Mere days after President Trump signed a controversial executive order temporarily banning U.S. entry for immigrants or refugees from seven Muslim-majority countries, it was struck down by the 9th Circuit Court of Appeals. This put national focus on that court, which encompasses both some of the most progressive and conservative states, yet generally issues liberal decisions — making it despised many Republicans.
A new bill in Congress could make it less likely for that court to issue decisions like striking down the Trump executive order.
(Rather than appeal to the Supreme Court as he originally promised, Trump plans to issue a revised executive order that his administration believes is more likely to withstand judicial scrutiny.)
Why many Republicans hate the 9th Circuit Court
Below the Supreme Court on the judicial hierarchy, there are 13 “circuit courts,” which decide cases of federal law in different geographical areas of the country. The Supreme Court takes up cases where two or more lower courts disagree, as well as other cases that raise consequential or novel constitutional issues.
The 9th Circuit Court covers the west coast and covers more than 20 percent of the U.S. population. It encompasses left-leaning states like California, Hawaii, and Oregon, and Washington, but also right-leaning states like Arizona, Alaska, Idaho, and Montana. But its judges clearly lean left: of the 44 judges serving on the court, 28 were appointed by Democratic presidents, and only 16 by Republicans.
Unlike the nine-member Supreme Court, not all 44 of the circuit court judges hear each case. Rather, groups of three are selected. This structure combined with a frequent 2–1 majority of Democratic appointees likely explains the court’s tilt towards left-leaning decisions.
Notable recent left-leaning the decisions from the court include: allowing states to require pharmacies to dispense emergency contraceptives, ruling against the military’s policies against accepting openly gay recruits during an era when the since-discarded policy found mass support, and finding the phrase “under God” in the Pledge of Allegiance unconstitutional.
What the bill does
The Circuit Court of Appeals Restructuring and Modernization Act, labelled S. 295, was introduced by Sen. Steve Daines (R-MT).
The bill would split the existing 9th Circuit into two courts. One — intended to maintain the status quo ideology of the court — would consist of California, Hawaii, the Pacific territories of Guam and the Northern Mariana Islands. The other — intended to allow conservative Western states to exert more control — would contain Alaska, Arizona, Idaho, Montana, Nevada, Oregon, and Washington.
What supporters say
In public statements, supporters usually couch their advocacy in terms of judicial overload or misplaced jurisprudence.
“The Ninth Circuit’s jurisdiction includes 20 percent of our country’s population, nearly twice the size of the next largest circuit, and holds more than 30 percent of all pending cases,” Senate lead sponsor Daines said in a press release. “The Ninth Circuit has failed to adequately serve Americans’ needs — it’s time a court system that functions and provides the American people with the service they deserve.”
In 1998, Supreme Court Justices Anthony Kennedy (a moderate conservative) and the late Antonin Scalia (an undisputed conservative) also advocated splitting the 9th Circuit Court up. They went a step further than this bill, arguing that it should be divided not into two but into three. Scalia’s reasoning was that the court’s decisions were being reversed too much on appeal to the Supreme Court, a criticism many still make today.
While those concerns are legitimate, Republicans also oppose the liberal tilt of that court but might fear seeming politically motivated for proposing changing an aspect of the ostensibly-apolitical judicial branch.
What opponents say
Opponents say the court isn’t as liberally biased as Republicans claims. Of the three circuit court judges who struck down Trump’s travel ban, two were appointed by Democratic Presidents Barack Obama and Jimmy Carter, while one was appointed by Republican President George W. Bush. Critics of breaking up the court note that even the Bush-appointed judge sided with the Democrats, meaning the court may not be as partisan as Republicans contend.
They also call the Republicans’ arguments about scope hypocrisy. Senate cosponsor Sullivan said, “The population of the Ninth Circuit is nearly 85 percent bigger than the next largest circuit and covers 40 percent of our country’s land mass. It is simply too large, its scope is too wide, and it has long passed its ability to provide equal access to justice under the law.” Yet the Supreme Court covers 100 percent of our country’s land mass and has even wider scope than any appeals court, and nobody seriously proposes breaking the Supreme Court up.
Odds of passage
The bill has attracted two Senate cosponsors, both Republicans: Sen. Dan Sullivan and Lisa Murkowski (both R-AK). Daines introduced the bill in the previous Congress as well, where it attracted the same two cosponsors and no others, and never received a committee vote. This time, though, Republicans are much more frustrated with the 9th Circuit Court than they were back then.
With all three Senate signers so far from Montana or Alaska, states directly affected by the 9th Circuit Court, the bill will need to attract more geographically disperse supporters for a shot at passage. It awaits a vote in the Senate Judiciary Committee.