Posted 9:30 AM by Robert

Divide The Ninth Circuit To Make It Less Immodest II

The modest person generally best accomplishes his or her will through persuasion, the arrogant person finds it sufficient to impose that will through fiat. As noted in the prior post, the Ninth Circuit is often reversed, often unanimously, by the Supreme Court. In other words, Ninth Circuit opinions often fail to persuade the Supreme Court - indeed, Ninth Circuit opinions often fail to persuade even a single member of the Supreme Court. Further, Ninth Circuit opinions are, relative to opinions of other circuits, not considered persuasive or well constructed by judges sitting in other circuits - who much more rarely cite to the Ninth Circuit than to other circuits. But Ninth Circuit opinions do impose themselves by fiat on 56 million Americans. The discrepancy between the persuasiveness of Ninth Circuit opinions and their fiat power is a measure of the arrogance of that court.

Ninth Circuit Judges Kozinski and Thomas unwittingly admit the unpersuasiveness of Ninth Circuit opinions with this argument:

People and businesses make decisions with an eye toward legal consequences, so they need a clearly established body of law. Today, a Ninth Circuit decision is binding in nine Western states. After the split, a decision of the new Ninth Circuit would leave the law unclear in the seven states of the 12th and 13th Circuits. To get the law settled for all these states, the same issue would have to be decided by the two new circuits, which could take years. More circuits also means more conflicts in the law, increasing the burden on the Supreme Court to set matters straight.

If Ninth Circuit opinions were well crafted and persuasive almost nothing would be left of this Kozinski-Thomas argument. Although federal circuit courts cannot bind each other by fiat, they are generally loathe to "split" with another circuit's opinion unless that opinion is exceptionally unpersuasive. That is known as "honoring persuasive precedent." Following a division of the Ninth Circuit the new, smaller circuits would be able to reach each other by persuasion. Indeed, their historical unity should make it easier for those circuits to persuade each other than it would be to persuade circuits outside the old Ninth.

That Judges Kozinski and Thomas are convinced that the newly divided Ninth would experience a great uptick in uncertainty and a corresponding great downtick in uniformity is all but an admission of their belief that the Ninth Circuit often does not persuade, but instead imposes its will by fiat.

Dividing the Ninth Circuit would require that Ninth Circuit judges craft persuasive opinions if they wish their written will to carry as far as it does now, since they would no longer be able to rely on such a broad fiat. An uptick in opinion quality would be an unalloyed good for everyone. The Ninth Circuit would gain respect and modesty and lose some arrogance. The burden now placed on the Supreme Court to police and correct Ninth Circuit errors would be reduced. Litigants would benefit from receiving better justice. And the 56 million (soon to be 75 million) people in the current Ninth Circuit, and their businesses, who make decisions with an eye toward legal consequences would benefit from better, clearer and more persuasive constructions of federal law.

Judges Kozinski and Thomas all but admit as much.

UPDATE: An astute reader comments:

as a former clerk on the ninth, i have some comments on your analysis (with which i completely agree):

1. as you obliquely point out, some of the judges on the ninth circuit in many ways have more power than supreme court justices, because the ninth is effectively the last stop for many more litigants (the supreme court can only hear so many cases). that's not right.

2. the ninth has far too much power not merely because it is the court of appeals for so many, but also because of the enormous geographic area it covers. e.g., maritime law on the east coast is divided up between many circuits, but on the west coast, it's only the ninth. this is a clean example, but the same principle obtains for other types of law. so you don't get the same sort of experimentation/dialogue with respect to such law as you might if the ninth were split up. it again seems wrong to have a single court so dominate critically important areas of substantive law.

I completely agree.