Controversial 9th Circuit comes under scrutiny

Supreme Court Justice Alito backs proposal to split circuit that handles Alaska appeals

Posted: Sunday, May 10, 2009

Two top judges are in disagreement on whether the sometimes controversial 9th Circuit Court of Appeals should be split in two.

One of those judges is an associate justice of the U.S. Supreme Court, the other is a member of the 9th Circuit.

The court, which handles appeals from western states including Alaska, has been a lightening rod for controversy. The court is sometimes derisively called the "9th Circus," mostly by conservatives who claim it is dominated by liberals.

Some advocates of a split hoped that a new Circuit Court of Appeals based in the Pacific Northwest might be more conservative on environmental and other issues.

Speaking to the Alaska Bar Association Friday in Juneau, Associate Justice Samuel Alito Jr. said he supports a split, for practical and not political reasons.

The current 9th Circuit is simply too big, he said. It now covers 71 million people, the largest of any of the circuits. Alito said its workload was just too high, even with 27 judges, augmented by another 21 senior judges.

Each judge has to decide 500 cases a year, which Alito said was "far beyond the capacity of a human being."

"The case load of judges of the 9th Circuit is absolutely crushing - I don't know how they can possibly do it," he said.

And simply adding more judges won't solve the problem, he said. There's a maximum number of judges an appeals court can have and still operate as a cohesive, functional unit.

Alito said the problem began when the circuits were divided up more than a century ago, based on population distribution of the country in the 1890s.

Ninth Circuit Judge Milan D. Smith Jr. of California questioned whether a division would work, noting that such proposals have been made for more than 70 years.

"The elephant in the room was, and is, that California produces the vast majority of the cases filed," he said.

A recent Congressional effort to divide the 9th Circuit into two would have had California and Hawaii in one circuit, and Alaska and all the others in a new Pacific Northwest circuit.

The problem, Smith said, was that the new California-based circuit would still have 75 percent of the cases of the current 9th Circuit.

"We're right back where we started from, with this huge, huge court," Smith said.

Another problem would be precedent, he said. A divided circuit would each adopted the case law developed by the prior 9th Circuit as its precedent.

Pacific Northwest timber companies had hoped for a new Northwest circuit, which might give them more favorable rulings. But Smith said a new circuit would adopt the existing cases and start with that framework.

"People who are upset with spotted owls and what have you, it's still there," he said.

A division now is unlikely, Smith said, because the current Congressional leadership, especially in the Senate, is opposed to it.

Smith said one way to handle it might be to divide the existing court into northern, central and southern divisions where regional judges would hear cases. The full body could then decide which cases it would hear.

Friday's panel discussion was emceed by Federal District Judge Ralph Beistline of Fairbanks, who began the session by introducing Smith and saying he was "well on his way to straightening out the 9th Circuit."

Later, Alito again mention the 9th Circuit's reputation in a comment on lawyer etiquette and a what-not-to-do guide for appearing before an appeals court.

In a brief filed with the 3rd Circuit, Alito's previous court, a lawyer "had a few critical things, let's put it that way, about the 9th Circuit."

That may not have been the best strategy," Alito said.

"You can image how chagrined he was when he arrived in court and found one of the judges on the panel that was going to hear his case was a visiting judge from the 9th Circuit," Alito said.

Smith challenged what has become the accepted view of the 9th Circuit as the court that is most overturned by the Supreme Court.

"I'd like to put that into a little perspective," he said.

In 2006, the year from which the "most overturned" statistic came, the Supreme Court overturned 21 of 16,000 cased it heard. That means that 99.9 percent were not reversed.

Some of the controversy may come because the circuit includes the state of California, which has interesting ideas, and judges don't get to decide what cases get filed.

"People file interesting lawsuits we are required to address," Smith said.

• Contact reporter Pat Forgey at 523-2250 or

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