The Volokh Conspiracy

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Volokh Conspiracy

How Big Can the Ninth Circuit Get?

The Judicial Conference is recommending additional judges for what is already the largest


With 29 judges in active service, the U.S. Court of Appeals for the Ninth Circuit is already the nations largest federal appellate court. The court is so large that it does not sit as a full court when sitting en banc. Instead, en banc panels consist of the Chief Judge and ten other judges selected at random.

The Judicial Conference of the United States is recommending the addition of five additional seats to the Ninth Circuit, in addition to 73 district court judgeships around the country (eight of which are temporary judgeships that would be made permanent). These recommendations are based upon the Judicial Conference's assessment of court caseloads and administrative needs, and were the subject of a Senate Judiciary Committee hearing earlier this year.

The Conference is likely correct that the Ninth Circuit needs more judges to handle the volume of cases within the circuit. The same goes for their district court recommendations. The last time Congress significantly expanded the federal courts was in 1990, and court caseloads have increased substantially since then, particularly in federal district courts. Expanding lower courts to handle the nation's legal needs is overdue.

While I accept the Judicial Conference's claim that the nation needs more federal judges, I confess some reluctance to make the Ninth Circuit any larger. It is already an unwieldy court, far larger than any other circuit. While the Judicial Conference is recommending that the Ninth Circuit have over thirty judges, no other circuit court even has twenty—and no other circuit has adopted the Ninth Circuit's non-banc en banc process.

When Congress gets around to responding to the Judicial Conference's request, I hope it also gives consideration to splitting the Ninth Circuit into two, more normal-sized courts. In the past, such proposals have foundered on political concerns, such as that California's influence would overwhelm that of any other states in a newly constituted court. The alternatives of spitting California between two circuits or having a California-only circuit are also less-then desirable. Perhaps so, but it seems to me that a 30-plus judge circuit court is worse. Creating two circuit courts—a California-only court and another consisting of the remainder of the current Ninth—with 18 judges each, would satisfy the need for more judges and cut the current Ninth down to size.