This post, originally published in April after Trump said “absolutely” he's considered breaking up the U.S. Court of Appeals for the 9th Circuit, has been updated now that the appeals court has ruled, again, against one of his travel bans.
Predictably, a day after the U.S. Court of Appeals for the 9th Circuit agreed to keep frozen President Trump's second version of a travel ban, Trump aired his grievances on Twitter:
This isn't the first time he's thrown shade at court, which is part of a network of federal courts that are second only to the Supreme Court. This one in particular has decided big cases that have been a thorn in his side.
“Absolutely, I have,” Trump told the Washington Examiner in an April interview about whether he's considering breaking up the U.S. Court of Appeals for the 9th Circuit, which has twice halted his travel ban executive order and could be deciding another on sanctuary cities soon. “There are many people that want to break up the 9th Circuit. It's outrageous.”
Trump cannot wave his pen and break up a federal court as he suggested he wants to do. But there are ways he could work with Congress to split up a federal court — doing it just might be more trouble than it's worth. Let's walk through them.
How to break up a court
The president doesn't have the unilateral power to change federal courts, but Congress can mix the courts up however it wants to. “The Constitution only requires there be a Supreme Court,” said Cornell law professor Josh Chafetz, my go-to source for understanding the Constitution in plain language. “It doesn't say anything about how the lower courts have to be organized.”
Lawmakers in Washington could theoretically decide the 9th Circuit, which is headquartered in San Francisco and accepts cases from lower courts in nine states stretching from Nevada to Alaska and to the territory of Guam, should be split up. Maybe they create a new circuit court in Reno, Nev., or Fairbanks, Alaska. A member of Congress can write a bill doing just that, and if it passes Congress, Trump can sign it, and, presto, now there are two courts where there was one.
This has happened before. In 1980, President Jimmy Carter signed a bill splitting up the heavily trafficked U.S. Court of Appeals for the 5th Circuit in the South. Now the western half is under the 5th Circuit and the eastern half is under the 11th Circuit. There have been a couple of bills introduced in Congress over the years to do this to the 9th Circuit.
The hurdles of breaking up a court
But but but. Chafetz has a hard time seeing Congress wanting to break up the court. Reorganizing a court is a dangerous undertaking for a politician — a little like trying to poke a fire ant hill with a stick without getting bitten.
This issue doesn't just get at the foundation of America, it IS the foundation of America. We're talking about the independence of the three branches of government and the various checks they have on each other.
Ask almost any lawmaker in Washington, and they'll say an independent judiciary is good for democracy. And they'll also say that politicians who tried to exert their power over the courts are bad for democracy.
It's common belief, for example, on both the right and left that President Franklin D. Roosevelt overstepped his bounds when he tried to expand the Supreme Court to as many as 15 justices after the court knocked down key pieces of his New Deal legislation. (Congress put a hard stop to that idea.)
Today, it's difficult to see how Congress — which is controlled by Republicans — convinces Americans they are breaking up this court for any reason other than to help create a more favorable judicial landscape for the president.
People had been advocating for the 5th Circuit to break up for years because it was overwhelmed, Chafetz said. But since so much civil rights legislation passed through it, whether to break apart or keep together the court became a symbol in a broader political battle.
It's easy to see the status of the 9th Circuit take on the same symbolism with regard to Trump's administration. Say Trump supporters want to break it up, it's almost certain that Trump opponents will want to keep it. And Senate Democrats can filibuster any hypothetical 9th Circuit legislation.
Here's a workaround to changing the 9th Circuit without breaking it up
Even if Congress and Trump agreed to split up the court, it'd still be mostly filled with Democratic appointees. They'd just rule on fewer cases from a different city. (Though some scholars say the 9th Circuit's liberal reputation is “overblown.")
To really change the make up of the court, Trump and Congress would have to impeach these judges, or expand the court's size, then appoint newer, ostensibly more conservative judges.
Changing judgeships would be an even more difficult political sell than breaking a court in two but keeping the same judges, Chafetz says.
But someone is selling it somewhere. Advocates of an independent judiciary are accusing politicians of messing with the independence of courts as I type this. Bills have been proposed in Florida, Washington state and Idaho to allow those state legislatures to override certain court decisions.
“This notion that a legislature can just override a court ruling is quite radical,” Alicia Bannon, who is with the nonpartisan Brennan Center for Justice, told The Fix in February. “What this does is really shift power toward political institutions in a way I think should make people worried about the ability of courts to enforce the Constitution and protect people's rights.”
If that trend continues, it's possible to see a world where Americans care less about the independence of the courts. They're arguably already political because they decide cases that affect politics.
But that day is probably not today. And that's why Trump will probably have to live with the 9th Circuit for the rest of his presidency.
That may not be such a terrible status quo for Trump. Any appeal from a circuit court goes to the U.S. Supreme Court, which, after the Senate appointed Justice Neil M. Gorsuch, is tilted in his favor.
*This post originally said Trump and Congress could fire judges to change the make up of the 9th Circuit Court. We've made clearer that to do that, they would have to impeach a judge. (Though in 1802, Congress and Thomas Jefferson eliminated all circuit court judges.) Federal judges serve for life.