Easterbrook on the 9th Circuit
I was just reading this interview of Judge Frank Easterbrook of the 7th Circuit Court of Appeals. One of the most interesting parts concerned the size of the 9th Circuit. People have been kicking around the idea of breaking up the 9th Circuit for a while because of its size (28 active judges). Here is what Judge Easterbrook has to say...
Twenty-eight, by contrast, is morbidly obese. It is larger than the original Senate. Add senior judges, plus visiting circuit and district judges, and the effective size of the Ninth Circuit is closer to 50 than to 28. Town-meeting size makes coordination difficult and can conduce to town-meeting conduct. It is smaller than the mob that condemned Socrates, but that's not saying much. On average, more than two years pass between the time any given judge of the Ninth Circuit sits with any other, which frustrates the ability to operate as a single institution. And its record in the Supreme Court speaks eloquently. See Richard A. Posner, Is the Ninth Circuit Too Large?, 29 J. Legal Studies 711 (2000) (studying unanimous or summary reversals, which cannot be attributed to philosophical differences between the Justices and the appellate courts).The 9th Circuit gets overturned very often by the Supreme Court. It's become something of a joke within legal circles. If you're reading a Supreme Court opinion reviewing a case from the 9th Circuit, assume that the Court is going to go the other way. I think that Judge Easterbrook is correct. They are just too large to function as a single institution.
When I was in the SG's Office, we contemplated filing a cert. petition that began: "This is a petition to review a judgment of the United States Court of Appeals for the Seventh Circuit, and there are other reasons to issue the writ." Now that dubious mantle has passed to the Ninth Circuit. A few years ago, a lawyer who propounded some farfetched proposition was asked: "Do you have any authority for that point?" Counsel cited a decision of the Ninth Circuit, and the questioner (not me!) continued: "All very well, but do you have any legal authority?"
