Tuesday’s ruling against Trump’s sanctuary cities executive order brought another volley of criticisms (even though the decision came not from the appeals court but from a lower court judge in the circuit, which includes courts in nine states, Guam and the Northern Mariana Islands).
Reacting to the ruling, Trump told the Washington Examiner that he was “absolutely” considering Republican-backed proposals to split the 9th Circuit into multiple courts. “It’s outrageous,” he said.
None of this — the insults, the criticisms, the threats to break up the court — is new. For decades, the 9th Circuit has been a whipping boy for conservatives, who say it suffers from an incorrigible left-wing bias that clouds its decisions. They point to a string of high-profile rulings over the years in favor of liberal causes, and note that most of the court’s jurists are Democratic appointees.
They also argue, erroneously, that its decisions get overturned more than any other appeals court.
Most of the grumbling happens when the 9th Circuit issues a ruling critics don’t like. The implication is that they couldn’t possibly be wrong on the law in such cases and that their defeats are a product of the court’s ideological tilt.
Sometimes things get hyperbolic. Conservative pundits are fond of calling the court the “Ninth Circus” or the “Nutty Ninth.” Newt Gingrich once proposed abolishing it entirely, bashing its opinions as “dictatorial” and “anti-American.”
“America can find no more ghoulish poster children for what is fundamentally dishonest about liberal judicial activism than those judges of the 9th U.S. Circuit Court of Appeals,” conservative commentator Mark Q. Rhoads, a former Illinois legislator, once wrote of the court.
There was indeed a period when the 9th Circuit was overwhelmingly liberal. In the 1970s, President Jimmy Carter worked with a Democratic Congress to add seats on the court, then stacked it with left-wing jurists. By the end of his term, Carter had installed 15 judges to the court, including the “liberal lion” Judge Stephen Reinhardt.
“Carter appointed some of the most liberal judges ever, to any court,” Judge Alex Kozinski, a conservative 9th Circuit judge appointed by President Ronald Reagan, told the New York Times in 2010.
Where does the court stand today? That depends on whom you ask.
Conservatives say Carter’s legacy is alive and well on the 9th Circuit. As evidence, they cite a number of supposedly liberal-leaning decisions, including a 2002 ruling that found the Pledge of Allegiance unconstitutional because of its “one nation under God” line, as well as the landmark 2012 ruling that threw out California’s same-sex marriage ban. The court’s travel ban ruling appears to have been added to the list of offending decisions.
But some legal observers contend that the court, while still generally more liberal than other circuits, has drifted back toward the center. Ben Feuer, chairman of the California Appellate Law Group LLP and a former 9th Circuit clerk, wrote last year that President Barack Obama had appointed less overtly liberal judges to replace retiring Carter appointees.
“The court earned its flower-child reputation fairly,” Feuer wrote in the Los Angeles Times. He added: “But whereas the Carter judges reliably took left-leaning positions, the Obama judges are less predictable. That’s a big difference given the 9th Circuit’s mythic liberality.”
University of Richmond Law School professor Carl Tobias seemed to agree, calling the 9th Circuit’s liberal reputation “dated.”
“The reputation is certainly deserved based on the history of the last 40 years or so,” Hellman told the Associated Press in February. “It’s been more liberal, by which we mean more sympathetic to habeas petitioners, civil rights plaintiffs, anti-trust cases, immigration cases. But it’s less of an outlier now than it was.”
Claims that the 9th Circuit is the “most reversed” appeals court are less a matter of debate.
Critics of the court like to cite a statistic showing that nearly 80 percent of 9th Circuit rulings that make it to the U.S. Supreme Court get overturned, earning it the “most reversed” moniker. Trump has mentioned the figure on multiple occasions, and did so again in a tweet Wednesday.
The claim is misleading at best. The 9th Circuit’s reversal rate was, in fact, 80 percent during the 2015-2016 term, as The Washington Post has reported. But it didn’t have the highest reversal rate that year — nor in any year since 2005. The circuit’s reversal rate was usually higher than the average, but not always. In any case, the Supreme Court only takes up a minuscule fraction of any circuit’s cases in a given year, so a court’s reversal rate, whatever it may be, really doesn’t say much about its jurisprudence. PolitiFact and the Associated Press have reached similar conclusions.
Breaking up the 9th Circuit is a different story entirely. Conservative groups and Republicans in Congress have long dreamed of carving a new 12th Circuit, floating legislation year after year to split the court in two. Such a bill was introduced again in February by Sens. Jeff Flake (R-Ariz.) and John McCain (R-Ariz).
There’s no shortage of nonpolitical reasons to break up the 9th Circuit. For one, the court takes on thousands more cases than any other circuit, leading some to argue it’s overburdened. It also covers a sprawling area of the country, spanning 15 federal judicial districts. That’s too big, some say.
Trump, of course, seems more focused on his ideological battles than the nitty-gritty of the judicial system.
As he said in February, “Courts seem to be so political.”
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