JUDGING CRIMES

In the mysterious way of the American political media, whereby ideas that have been struggling for recognition for years can become celebrities overnight, talk about splitting up the Ninth Circuit is suddenly in the news.  "Is the Ninth Circuit as liberal as some claim?" asks Dennis Myers.  The Ninth Circuit itself posts an article on its website by one of its judges, and the prepared testimony of another, to refute the "too liberal" charge.

But, of course, the Ninth Circuit isn't too liberal, or too conservative, or anything else.  It has no personality of its own, much less political beliefs.  It's a collection of 47 judges .   If the Ninth Circuit has problems, they're problems of individual judges, or of the Circuit's size.  

I think the Ninth Circuit suffers from both problems, and they're closely related.  It reigns over an enormous geographic area and decides thousands of cases each year.  Here is a list of recent formal opinions.  And here is an even longer list of "memoranda" or officially unpublished opinions.   It is by no means unusual for the Ninth Circuit to crank out 20 or 30 decisions in a day.  A Ninth Circuit judge who  conscientiously studied every opinion issued by his court would have no time left to write opinions of his own.  It must be assumed, then, that most opinions by "the Ninth Circuit" enter the public domain without even having been read by most of the judges on that court.

In most other appellate courts in the country, "en banc review" -- by which a decision of a three-judge panel is reviewed by all the judges on the court-- is a possibility.  Not so in the Ninth Circuit.  Until last month, the Ninth Circuit's version of "en banc review" required the participation of just 11 judges, a number since raised to 15.  This means there's no such thing as an opinion by "the Ninth Circuit."  There are only opinions by a majority of groups of three, 11 or 15 of its members.

During the very years that the Ninth Circuit was earning its notoriety, Chief Justice Rehnquist pursued the project of drastically reducing the Supreme Court's caseload.  (See post 8.)  It's not coincidence that the two trends occurred at the same time.  In recent years, a Ninth Circuit judge drafting an opinion knew that the possibility of review by the Supreme Court was extremely remote, while the possibility of true en banc review was non-existent.   Probably most of his colleagues on the bench wouldn't even read what he wrote.  These circumstances created the autonomous judge, the judge operating without constraint, charged with ensuring that others follow the law while he himself was under no external compulsion to do the same.

One result, in Akhil Reed Amar's vivid phrase, is a judicial lottery.   Ninth Circuit decisions might get reversed by the Supreme Court 20 times in a single term, but if in the preceding year Ninth Circuit judges had defied the Supreme Court 100 times, then in 80 cases it, and not the Supreme Court, had the last word.  The Rehnquist Court, with its paltry 70-80 decisions per year, simply couldn't keep up with a court that cranked out that many opinions in a slow week.  Rehnquist's reduction in the Supreme Court's caseload was, in practical terms, a transfer of a portion of the Court's authority to the circuit courts of appeals. 

Madison warned us, two and a quarter centuries ago, that "power is of an encroaching nature".  Those that are given power will use it.   Here's an example.  Judge Pregerson of the Ninth Circuit overturned a murderer's conviction, giving as one of his reasons that the  California Court of Appeal had "not even mention[ed]" a crucial fact.   But, as an unanimous U.S. Supreme Court pointed out, that fact "was in fact succinctly described" in the California court's opinion.  Perhaps there's an innocent explanation for the misstatement in Judge Pregerson's opinion.   But whatever his mens rea, it's hard to believe he would have been so blatant (or careless) if he thought anyone was paying attention. 

How many similar instances have escaped the Supreme Court's correction?

The problem with the Ninth Circuit isn't that it's too liberal, but that its judges are too autonomous.  The Circuit should be split not just once but twice, until its components are small enough that every decision can be subject to review by the entire court.  Arizona, Nevada, Idaho and Montana belong together in a 12th Circuit (perhaps Utah could peel off from the 10th Circuit to join them), and the Pacific Northwest, Alaska and Hawai'i should become the lucky 13th.   California is certainly big enough to host the 9th by itself.

But in the meantime, the Supreme Court should quintuple its caseload, so lower court judges will no longer be asked to withstand the temptation to play the lottery.  The justices need to realize that reducing their caseload so dramatically was the equivalent of leaving the keys in the ignition of their convertible.