Trump's Right About The Ninth Circuit

On the campaign trail, Trump would sometimes discuss his desire to “break up the Ninth Circuit”, dividing the federal circuit court based in California into two smaller bodies. He recently affirmed this desire in an interview, following a 60 Minutes segment which also touched on the subject.

He’s right, but not for the reason some conservatives are giving.

Yes, the Ninth Circuit is infamous for its liberal bias. And yes, the court is one of the most-reversed appeals court in the nation, with roughly 80% of decisions being reversed by the Supreme Court upon review. But these facts by themselves should not be sufficient grounds for fundamentally reshaping the structure of the nation’s judiciary.

The simple fact is that from a logistical standpoint, the current structure of the Ninth Circuit in relation to the other eleven federal circuit courts is ridiculous. The Ninth Circuit has more than twice the number of active judges as the next largest appeals court, with 29, and the states and territories which make up the circuit’s jurisdiction comprise 20% of the entire U.S. population. For logistical reasons alone, the court should be split in two—a fact recognized by Justices Thomas and Kennedy ten years ago.

The logistical reasons alone for splitting the Ninth Circuit are important enough, and if conservatives hope to have any meaningful chance of actually reforming the judiciary, with bipartisan support, they would do well to focus on the more technical arguments of the issue. Otherwise, should Republicans make the ideological makeup of the court as much a part of the conversation as its unwieldy size, Democrats could well get it in their head to attempt to meddle with the structure of more conservative circuit courts, such as the Third Circuit, in hopes of creating conditions more favorable to judicial activism and concepts of a “living Constitution”. The related yet separate problem of the Ninth Circuit’s judicial overreach is one better answered by prudent use of the President’s nomination power, and the Senate’s review of those nominations.