Disorder in the court

Consider a hypothetical court of 28 judges (the number of active judges currently on the 9th Circuit), in which six of the judges are extreme. The probability of such a court randomly selecting a panel with at least two extreme judges is almost 11%. But if it were divided into two courts -- each with 14 judges, three of whom are extreme -- that probability falls to 9%.

A difference of 1% or 2% may not seem like much, but the 9th Circuit decides more than 6,000 cases every year. This means that if the 9th Circuit is anything like my hypothetical court, splitting it in half would save 60 to 120 appeals a year from being decided by panels with a majority of extreme judges.

If a majority of the full court believes a panel's decision is too far out of step, the full membership can rehear a case. But that is such a cumbersome process that it's used very rarely. The 9th Circuit used it only 22 times last year. And even then, the court is so large that it uses a randomly selected panel of 15 judges instead of the full 28.

Of course, mathematics cannot prove that one of the reasons the 9th Circuit is so frequently reversed by the Supreme Court is because it renders more extreme decisions. But we have other evidence to go on. Of the 19 9th Circuit cases reversed by the Supreme Court last term, eight of them were unanimous -- that is, the 9th Circuit's view in these cases did not win the support of a single justice, from the liberal John Paul Stevens to the conservative Clarence Thomas. All the other 12 circuit courts combined were unanimously reversed only nine times.

In other words, it is no coincidence that, when you hear about a bizarre ruling issued by a federal court of appeals, it very likely came from the 9th Circuit. That court was, after all, the one that held a few years ago that it was unconstitutional to voluntarily recite the Pledge of Allegiance in a public school. It also has ruled that tenants in public housing could not be evicted even though their apartments were being used as drug dens. Both of these decisions were, not surprisingly, unanimously reversed by the Supreme Court.

As long as the 9th Circuit stays as large as it is, it is likely to disproportionately continue to issue rulings like these, and it is likely to continue being disproportionately reversed by the Supreme Court.

Over the last six years, many members of the Senate have expressed their desire to reduce the number of "extreme" (as opposed to "mainstream") judicial decisions. If they mean what they say, they should also want to complete the work of the last Congress and split the 9th Circuit.