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January|February 2004

Indivisible

By Lincoln Caplan

THREE YEARS AGO, A TRIAL JUDGE IN CALIFORNIA ruled that a public school teacher who required his students to recite the full Pledge of Allegiance, including the phrase “under God,” violated the Constitution’s decree that the government can’t establish a religion. The decision was later upheld by a panel of judges from the Ninth Circuit Court of Appeals. Ire over the panel’s ruling began bubbling up immediately, and it is likely to reach a boil this spring when the Supreme Court rules on the case. Whether or not the words “under God” remain in the pledge, however, may be the least important legacy of the case, which could transform how justice is administered in the Western states.

As the late Justice William Brennan put it, the pledge’s mention of a higher power is nothing more than “ceremonial deism,” and the Supreme Court is likely to uphold the right of schools to have students recite the pledge in its ceremonial entirety. But the attention that the case and its review have brought to the Ninth Circuit has given the court’s enemies newfound resolve—and has reinvigorated a generation-old movement to split the circuit in two.

The opponents of the court, among them Darrell Issa, the San Diego–area congressman and architect of the recent California recall election, believe that the pledge ruling offers further proof that the Ninth is the country’s most left-wing appeals court. Issa has said that the court should be split up because it is “too liberal.”

Breaking up a federal circuit court is not unprecedented. In the 113 years since the circuits were established as courts of appeals to organize the federal legal system, circuits have been split on two occasions to facilitate the workings of justice. The first came in 1929, when part of the heartland’s Eighth Circuit became the Tenth, which covers the Rocky Mountains. The second happened in 1980, when part of the South’s Fifth Circuit became the Southeast’s Eleventh.

“There is nothing sinister, immoral, fattening, politically incorrect, or unconstitutional about the reconstructing of judicial circuits. This is simply the natural evolution of the federal appellate court structure responding to population changes,” said Diarmuid O’Scannlain, a Ninth Circuit judge who supports splitting up the circuit.

IF THERE IS ANY CANDIDATE FOR SPLITTING among the circuits today, it is certainly the Ninth. Of the 12 federal circuits, the Ninth is by far the largest. It encompasses nine states (including Alaska) that together constitute some 40 percent of United States territory. Over 51 million people live in the circuit, compared to an average of 20 million people in the other circuits, and it is allotted 28 appellate judges, compared to 17 in the next biggest circuit. The court is responsible for 25 percent of the country’s backlog of federal appeals, and the pressure is only increasing; last year alone, the number of appeals in the Ninth Circuit rose by 13 percent, compared to a 5-percent rise nationally.

Yet most of the Ninth’s judges, including its chief, are against breaking up the court. Instead of regarding the circuit’s large number of judges as a liability, they see themselves as an asset to be deployed to areas with heavy caseloads. Instead of viewing the circuit’s expanse of territory as a problem, they consider it a way of maintaining uniform law along the Pacific coast.

Perhaps the best reason not to split the court comes from the late Justice Byron White of the Supreme Court, who five years ago chaired a commission that did a thorough study on the workings of the federal courts of appeals. “There is one principle that we regard as undebatable,” the commission wrote. “It is wrong to realign circuits (or not to realign them) and to restructure courts (or to leave them alone) because of particular judicial decisions or particular judges.”

The wisdom of White’s guidance is borne out by the Ninth Circuit’s recent history. The circuit’s ruling in the pledge case has made it into something of a piñata for conservatives who oppose the decision. But examine the jurisprudence of the circuit, and you will see that the pledge case is hardly an accurate reflection of the circuit’s broad and diverse group of judges.

The Ninth Circuit is actually marked by ideological discord much more than by consistent liberalism (see "The Big Kozinski”). In the few Ninth Circuit rulings that the Supreme Court reviewed in its last term, the circuit was reversed at about the same rate as the other circuits. It was a Republican appointee who penned the decision to remove “under God” from the pledge, and the panel was bitterly split 2-1. The enthusiasm for dividing the Ninth to conquer its supposed liberalism is reason enough not to divide it at all.

Lincoln Caplan is the editor and president of Legal Affairs.

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