Last week, Justices Kennedy and Thomas visited Congress to present the annual budget request and, while there, discussed the need (as they see it) to split the Ninth. (Hat tip to How Appealing Extra.) They are not, of course, the first to discuss this, but I thought I'd use it as an opportunity to think about what ELS can provide to an important (and sometimes heated) policy question. Very often Congress (or state legislatures) make policy decisions without "good data." (States' choices of selection systems, for example, rarely seem to be informed by the ramifications of selection method on decision making or legitimacy, etc.) So, to start a discussion of what a split of the Ninth would accomplish v. what harm would it do, I call to your attention work by Kevin Scott of the Congressional Research Service (and I'm hoping others might call attention to other empirical work on this question as well). Here's his abstract:
Much attention has been focused on the Ninth Circuit Court of Appeals. To some degree, the attention has been self-created, with high profile decisions on three-strikes laws, punch-card ballots, and the constitutionality of the Pledge of Allegiance generating substantial media coverage and reaction from elected officials. This attention mirrors an ongoing debate about the wisdom of splitting the Ninth Circuit into two smaller circuits. Arguments about splitting the Circuit center on the source of the Circuit’s high reversal rate. There are two competing explanations for that reversal rate: the judges of the Ninth Circuit are more ideologically distant from the Supreme Court than judges on other Circuits, or the size of the Ninth Circuit prevents the circuit majority from correcting “wrong” decisions by panels, a problem augmented by the Ninth Circuit’s reliance on the limited en banc procedure.
This paper sorts out the cause of the Ninth Circuit’s reversal rate by looking at the Court’s relationship with the Supreme Court over the past twenty years. By looking at merits reversals, including unanimous reversals, and attempting a broader assessment of the Ninth Circuit’s status vis-à-vis the other circuits and the Supreme Court, I ultimately argue that both size (though indirectly) and ideological orientation influence the Ninth Circuit’s high reversal rate. These findings have broad implications for how we model the behavior of court of appeals judges and their relationship with the Supreme Court.
For the paper, click here.