Bench Memos

Will Congress Split the Ninth Circuit?

The Hill reports that Senator Jeff Flake (R-AZ) is introducing legislation to split up the U.S. Court of Appeals for the Ninth Circuit.  From the report:

“With regard to the court, it’s just access to justice,” Flake said. “Its docket is more than twice as big as the next biggest circuit. This has been a long time coming, and hopefully we can make some progress finally.” 

Flake’s office said the bill will be similar to the legislation he introduced a year ago to establish an additional U.S. circuit court — composed of Arizona, Nevada, Montana, Idaho and Alaska — to relieve what he said at the time is an “oversized and overworked” 9th U.S. Circuit.

The Ninth Circuit is known as the most liberal appellate court in the country, but it’s also the largest and unwieldy.  With nearly 30 authorized seats, the court is so large that it does not sit as a full court when it rehears cases en banc. Republican lawmakers have talked about breaking up the Ninth before, but without success. With unified government, however, that may change. There is also talk of moving a judiciary bill that would create additional judgeships on the courts with the greatest backlogs, and perhaps to rebalance the U.S. Court of Appeals for the D.C. Circuit.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.


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