In an interview on Wednesday, President Donald Trump said he is “absolutely” considering proposals to break up the Ninth Circuit Court of Appeals, the jurisdiction in which judges earlier this year blocked his executive order restricting travel from seven predominantly Muslim countries. His comments came one day after U.S. District Judge William Orrick temporarily blocked his effort to withhold money from so-called sanctuary cities — which, if appealed, would also go to the Ninth Circuit, which has a liberal reputation and is geographically the largest court of its kind.
Trump wouldn’t be the first president to try to change the court system for political reasons, but he can’t break up the Ninth Circuit Court of Appeals. Only Congress has the power to shape lower federal courts, through the Ordain and Establish Clause of Article III of the U.S. Constitution. But to understand why the Ninth Circuit Court of Appeals has come under particular scrutiny is a more complicated matter.
One crucial point is when in American history the whole Circuit Court of Appeals system came to be the way it is today.
It wasn’t at the very beginning. For much of the 19th century, most federal criminal cases were seen to by a system of trial courts that had existed since the Judiciary Act of 1789. An early version of circuit courts existed to hear appeals from some federal district court cases — meaning that they had the power to review and change outcomes of lower-court decisions, but not much power, according to Arthur Hellman, author of Restructuring Justice: The Innovations of the Ninth Circuit and the Future of the Federal Courts and a professor of law at the University of Pittsburgh School of Law. Instead of having separate judgeships, each circuit court had a panel that consisted of two justices of the Supreme Court and the local U.S. district court judge. The judges would literally travel in a circuit, bringing the court to various places in the region, hearing the relatively small number of appeals that would come to them.
In 1869, however, as the new federal statutes of the post-Civil War era led to an increase in federal litigation cases, the old system wasn’t working. As a solution, Congress established one circuit judgeship for each of nine federal judicial circuits. This new type of circuit judge — or a designated Supreme Court justice, the district judge “or some combination of two of them” — could preside over the circuit courts, according to the Federal Judicial Center.
Finally, that system also got scrapped, when, in 1891, Congress created the system of U.S. Circuit Courts of Appeals. The nine new courts, one for each circuit, would be given responsibility for appeals coming out of the lower courts. That’s the system the Ninth Circuit Court of Appeals is a part of today. (The old U.S. circuit courts served as trial courts until they were abolished on January 1, 1912.)
This new in-between kind of court was created for a very practical reason: because all appeals had previously gone to the Supreme Court, the highest court had gotten incredibly backlogged, Hellman explains. As a solution, he says, “the Circuit Courts of Appeals were given jurisdiction over many cases that the Supreme Court would have previously had to hear.”
In a growing country, it was also understood that the regions of the nation differed. There was thus a value to bringing justice closer to the people via a geographically-organized set of appellate courts. Number nine is the farthest west region, stretching all the way from the Mexican border up to Canada, and from Montana to California.
But things have changed since the system was first established. When lawyers still traveled by train throughout the circuit, it made sense for Congress to, in 1929, divide the Eighth Circuit, which covered the middle of the country. (That’s why the Tenth circuit is geographically located between the Eighth and the Ninth.) But the Ninth Circuit, on the other hand, could still afford to be big. There simply weren’t as many people living out West when it was created. Hawaii and Alaska weren’t even states yet. Today, the Ninth Circuit is responsible for a much larger caseload that it was back then.
Meanwhile, as the population of the West has increased, the Circuit Courts of Appeals have also become increasingly more important, especially after the so-called Judges Bill of 1925 let the Supreme Court justices have virtually complete discretion to pick which cases they would hear. As the Supreme Court took on fewer cases, the Circuit Courts of Appeals became the final courts for the resolution of many important questions, explains John Witt, a professor at Yale Law School.
In the 1970s — as the civil-rights and environmental protections of the prior decade introduced a whole new heap of federal cases to the U.S. judicial system — caseloads skyrocketed. As a result, Washington debated whether to split the Circuit Courts of Appeals even further. In fact, Hellman was deputy director of the commission that was formed to consider the revision of the federal court system. But, Hellman recalls, the commission realized that keeping the circuits big was important. Though the large circuits would still have regional identities, including a wider geographic region meant that there would be a wider range of philosophies represented — which was particularly important at the time as the battle over segregation continued to rage.
In that particular case, some in Congress advocated splitting the Fifth Circuit, which included much of the South. Hellman says that Mississippi Senator James Eastland, the Chairman of the Senate Judiciary Committee, didn’t want his state to be in the same circuit as Texas and Louisiana, “which at that time, had some pretty liberal judges enforcing the Supreme Court’s desegregation decisions.” Eastland proposed giving Texas and Louisiana their own circuit and putting Mississippi, Florida, Georgia and Alabama in another. “[The commission] heavily emphasized that every circuit should have at least three states to get diversity of legal communities,” Hellman says, “and to get even more diversity of Senators to take part in these selections of judges.” (The Fifth Circuit was, in fact, split in the 1980s, but not along those lines. A separate appeals court for patents was also introduced in the late 20th century.)
Splitting up the Ninth Circuit has been talked about for decades, too. Even in the 1970s, Hellman says that people were concerned that the different panels in the circuit were too often in disagreement when it came to Vietnam draft cases — and in 1974, he himself proposed that the best way to fix the problem would be to split the area along North/South lines, dividing California in half. But, he acknowledges, dividing a state between two different circuits is “politically impossible.”
Nevertheless, experts say splitting the Ninth Circuit wouldn’t solve Trump’s perceived problem, even if it did happen. As Witt explains, “If the Ninth Circuit were split into two new circuits, it would still have the same judges.”