Dive Brief:

• Senate Republicans will revive a proposal to cleave the Ninth Judicial Circuit, creating a Twelfth circuit overseeing federal cases from seven Western states. Sen. Mike Crapo, an Idaho Republican, plans to introduce a bill splitting the Ninth in the coming weeks, his office confirmed to Legal Dive on Friday.
• The Ninth – long considered a “liberal” circuit by Republicans due to its rulings – is the largest and busiest of the federal circuits. Crapo first took up the effort legislatively in 2019 and was joined by several Republican colleagues. During his first term, President Donald Trump criticized the Ninth Circuit repeatedly over rulings that blocked his administration’s plans and said he’d considered proposals to split the court.
• The circuit covers 67 million people in nine states, including Alaska and Hawaii, Guam and the Northern Mariana Islands. There have been nearly five dozen legislative proposals to split the circuit since 1963, according to a 2024 Congressional Research Service report. Congress has not reorganized a federal circuit in 45 years.

Dive Insight:

Proponents of splitting the circuit argue that its backlog of cases means judges are overworked and that litigants suffer burdensome delays between the filing of an appeal and disposition of their matter. They also cite the extensive travel by judges over a large geographic area.

Opponents argue that the circuit’s configuration is working and that it would be needlessly expensive to create a new circuit. Crapo’s office did not have estimates of the costs of his legislative proposal.

A Ninth Circuit spokeswoman said the court has no comment on the proposal.

“As a result of massive population growth across several western states, the Ninth Circuit has seen an overwhelming increase in caseloads, creating a lengthy process for those seeking justice,” Crapo said in an October 2021 press release announcing the Judicial Reorganization Act of 2021.

That bill would have kept California, Guam and Hawaii within the Ninth circuit, and assigned cases from Alaska, Arizona, Idaho, Montana, Nevada, Oregon and Washington to a new Twelfth circuit. (The bill did not mention the disposition of the Northern Mariana Islands.)

Few of the sponsors of bills to reduce the Ninth’s purview cite ideological differences or specific circuit rulings, according to the research service.

“Restructuring proposals should be analyzed on grounds of effective judicial administration — grounds that remain unaffected by Supreme Court ‘batting averages’ or public perception of our decisions,” Diarmuid O’Scannlain, a senior judge on the circuit, said in 2017 Senate testimony arguing for a new circuit. “Restructuring the circuit is the best way to cure the administrative ills affecting my court, an institution that has far exceeded reasonably manageable proportions.”

Because of its size, with 29 authorized judges, the court uses a system of limited en banc panels of the chief judge and 10 others chosen randomly to hear cases – a practice that has also drawn criticism among those advocating the circuit be split.

Congress has convened two bodies to study the circuit’s size and structure, most recently in 1997. That commission, chaired by the late Supreme Court Justice Byron White, concluded that the circuit functioned effectively and that a new circuit would not improve the administration of justice.

An earlier commission, led by Nebraska Sen. Roman Hruska in 1972, recommended Congress split the Ninth and the Fifth circuits. In 1980, Congress split the Fifth Circuit into its current configuration of Texas, Louisiana and Mississippi. That was the last time lawmakers reorganized a federal circuit.

Judges on the Ninth Circuit, which was formed in 1866, hear arguments in San Francisco, Anchorage; Honolulu; Pasadena, Calif.; Portland, Ore., and Seattle.

Editor’s note: This article has been updated to add that the Ninth Circuit has no comment on the proposed legislation.