United States Court of Appeals for the Ninth Circuit

The U.S. Court of Appeals for the Ninth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:

Controversy

Critics of the Ninth Circuit attack the court on two fronts: first, that it is overwhelmingly politically liberal and out of step with Supreme Court precedent, and second, that the large size of the court impedes effective court administration and increases the risk of intracircuit splits on important issues of law.

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Political liberalism

The Ninth Circuit generally has a liberal reputation, though its judges span the gamut from reliably liberal to moderate to socially and fiscally conservative. Like all federal judges, judges on the Ninth Circuit serve for life, and as a result their decisions may diverge sharply from the viewpoint of the president that nominated them. Accordingly, efforts to categorize judges based on their past political affiliation or nominating president are often fruitless. For example, the 2002 majority opinion in Newdow v. United States Congress, 292 F.3d 597 (9th Cir. 2002), rev'd sub nom. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004), holding that the phrase "under God" in the Pledge of Allegiance violated the Establishment Clause of the First Amendment to the United States Constitution, was written by Senior Circuit Judge Alfred T. Goodwin, a Richard M. Nixon appointee.

Related Topics:
2002 - Newdow v. United States Congress - 292 F.3d 597 - God - Pledge of Allegiance - Establishment Clause - First Amendment to the United States Constitution - Senior Circuit Judge - Alfred T. Goodwin - Richard M. Nixon

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Indeed, while the Ninth Circuit had long been instrumental in striking new legal ground, particularly in the areas of immigration law and prisoner rights, it was the Newdow decision that galvanized criticism against what conservatives saw as "judicial activism." The case was litigated by Michael Newdow, an atheist who felt that the daily recitation of the Pledge of Allegiance in his daughter's school violated her First Amendment right to be free from government establishment of religion. In a 2-1 decision, a Ninth Circuit panel held for Newdow, stating that "he text of the official Pledge, codified in federal law, impermissibly takes a position with respect to the purely religious question of the existence and identity of God." Reaction to the decision by prominent political leaders, especially those in the House and Senate, was nothing short of apoplectic. President George W. Bush, through his spokesman Ari Fleischer, called the ruling "ridiculous," while Senator Charles Grassley called it "crazy and outrageous." Even mainstream Democrats attacked the decision, with House minority leader Richard Gephardt calling it "poorly thought out." Criticisms of the Newdow decision were not limited to the substantive law considered by the judges who heard the case; they also attacked the legitimacy and political independence of the court itself. The result was a renewed focus on the Ninth Circuit's caseload and a targeted effort by congressional Republicans to minimize the impact of such decisions.

Related Topics:
Michael Newdow - George W. Bush - Ari Fleischer - Charles Grassley - Richard Gephardt

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(In 2004, the United States Supreme Court reversed the Ninth Circuit's decision in the Newdow case, as many had predicted. However, the majority opinion did not reach the substantive issue of whether the Pledge violated the Establishment Clause, instead holding that Michael Newdow, whose ex-wife had primary custody of their daughter, did not have standing to litigate the claim in federal court. Minority opinions in the case indicated that several of the Justices disagreed with the Ninth Circuit's Establishment Clause analysis, but those suggestions do not carry the force of law.)

Related Topics:
2004 - United States Supreme Court

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Another hotly contested case considered by the Ninth Circuit arose from the enactment of a California law permitting the cultivation and use of marijuana for medicinal purposes. In Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003), rev'd sub nom. Gonzales v. Raich, No. 03-1454, 125 S.Ct. ____ (2005), a cancer patient sued the federal government, seeking to prevent it from seizing her supply of medical marijuana under the federal Controlled Substances Act. The United States argued that it had the right to enforce its drug laws against Raich notwithstanding the California statute. Raich argued that since the marijuana was grown within California, had never left the state's borders, and was not part of any economic transaction, Congress had no constitutional authority to regulate her cultivation and use of marijuana. In holding for Raich, the Ninth Circuit adhered to two landmark Supreme Court cases, United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000), which had substantially restricted Congress's authority to regulate "noneconomic" activity under the guise of the Commerce Clause to the United States Constitution. In a 6-3 decision, the Supreme Court disagreed with this analysis, adhering instead to a 1942 case, Wickard v. Filburn, 317 U.S. 111 (1942), in which the Court held that cultivation of wheat for personal consumption could be subject to a federal production quota even though the crop never entered the stream of commerce. Interestingly, the three dissenters — voting to uphold the Ninth Circuit — were Chief Justice William H. Rehnquist and Justice Clarence Thomas, considered to be two of the most conservative members of the Court, as well as Justice Sandra Day O'Connor, considered to be a moderate. The Raich litigation illustrates that although the result of the Ninth Circuit's decision pleased political liberals opposed to tough federal drug laws, the legal analysis employed by the court was faithful to the principles of federalism and thus wholly "conservative" from a legal perspective.

Related Topics:
Marijuana - Raich v. Ashcroft - 352 F.3d 1222 - United States v. Lopez - 1995 - United States v. Morrison - 2000 - Commerce Clause - United States Constitution - Wickard v. Filburn - 1942 - William H. Rehnquist - Clarence Thomas - Sandra Day O'Connor - Federalism

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The Ninth Circuit's willingness to venture into uncharted legal waters has been said to lead to a high reversal rate by the Supreme Court. A CNN.com article discussing the 2002 Newdow ruling stated that "he 9th Circuit is the most overturned appeals court in the country." This assertion is disputed by legal scholar Erwin Chemerinsky, who found that the Ninth Circuit's reversal rate was near the median of those of the other circuits. http://llr.lls.edu/volumes/v37-issue1/documents/chemerinsky.pdf

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Accusations of liberal judicial activism in the Ninth Circuit have led to it being referred to as the "Ninth Circus" by some conservative pundits, especially Rush Limbaugh.

Related Topics:
Circus - Rush Limbaugh

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Size of the court

In addition to concerns over its legal doctrine, critics of the Ninth Circuit point out several adverse consequences of its large size. Chief among these is the Ninth Circuit's unique rules concerning the composition of an en banc court. In other circuits, en banc courts are composed of all active circuit judges, plus (depending on the rules of the particular court) any senior judges who took part in the original panel decision. By contrast, in the Ninth Circuit it is impractical for twenty-eight or more judges to take part in a single oral argument and deliberate on a decision en masse. The court thus provides for a "limited en banc" review of a randomly-selected 11 judge panel. This means that en banc reviews may not actually reflect the views of the majority of the court, and indeed may not include any of the three judges involved in the decision being reviewed in the first place. The result, according to detractors, is a high risk of intracircuit conflicts of law where different groupings of judges end up delivering contradictory opinions. This is said to cause uncertainty in the district courts and within the bar. Supporters of the existing court, however, point out that en banc review is a relatively rare occurrence and that court rules provide for full en banc review in limited circumstances.

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