Ariz. Governor Wants Out of the 9th Circuit

PHOENIX (CN) - The Ninth Circuit U.S. Court of Appeals does not suit Arizona Gov. Doug Ducey. As Republican presidential candidates search for issues to sway voters, the Republican governor is pushing for a new federal appeals court to rule on the constitutional issues that arise in his desert state along the U.S.-Mexico border.

The Ninth Circuit covers a vast swath of Western states. It is the biggest federal appellate court in the nation and exerts great influence in matters involving federal law, at times restraining state governments that stray outside the constitutional framework.

Proposals to reorganize the circuit have come up regularly in the past, often in response to a decision that does not sit well with one group of politicians or another.

In the most recent attack on the circuit, Ducey is teaming up with fellow Arizona Republicans, Sen. Jeff Flake and Rep. Matt Salmon, to urge Congress to create a new Twelfth Circuit that would split the Ninth Circuit in two.

"The Ninth Circuit is by far the most overturned and overburdened court in the country," Ducey said in a statement issued late last week.

Kyle Barry, director of justice programs at Alliance for Justice, a liberal watchdog, said proposals to split the Ninth Circuit into two circuit courts are a regular Republican rallying cry.

"It's happened repeatedly over the years going back decades, as far as the 1960s," Barry told Courthouse News.

In 2002, for example, Republicans pushed to break up the circuit after a decision finding the phrase "under God" in the Pledge of Allegiance was a government endorsement of religion.

Barry said calls to split the Ninth Circuit are typically spearheaded by Republican lawmakers "in response to what's perceived as liberal decisions."

"What we are seeing now is just the latest iteration of that strategy," Barry said.

In recent years, the Ninth Circuit has struck down a number of Arizona laws touching on hot-button topics currently at the forefront of the Republican primary race, including immigration and abortion.

A panel of Ninth Circuit judges found an Arizona statute that required local police to check the status of anyone they suspected of being an undocumented immigrant encroached on federal jurisdiction, a ruling upheld by the U.S. Supreme Court in 2012.

Two years later, the Ninth Circuit ruled that Arizona's ban against off-label use of the drug RU-486 to induce abortions after seven weeks placed an unconstitutionally undue burden on the rights of women in low-income and rural areas to have an abortion, a burden defined by the Supreme Court in its 1992 ruling in Planned Parenthood of Se Penn. v. Casey.

"Arizona has presented no evidence whatsoever that the law furthers any interest in women's health," wrote Ninth Circuit Judge William Fletcher in overturning the Arizona statute.

In time-honored fashion, Ducey frames his argument in administrative rather than political terms. "The Ninth Circuit is by far the most overturned and overburdened court in the country, with a 77 percent reversal rate," he said.

Reversal rates for circuit courts are typically high because the U.S. Supreme Court generally does not review circuit decisions unless there is a controversy the high court wants to decide. As a result, when a decision is taken up, it is often reversed.

According to SCOTUSblog, more cases come to the U.S. Supreme Court from the Ninth Circuit that from any other circuit, making fully one quarter of the high court's caseload over the last two terms.

Circuit reversal rate averages for the last two terms, from 2010 to 2014, range from 50 to 87 percent. The high court reversed the St. Louis-based Eighth Circuit 87 percent of the time, the same rate as the Sixth Circuit based in Cincinnati.

The high court reversed the Atlanta-based 11th Circuit 81 percent of the time in the last two terms, followed by 79 percent for the Ninth Circuit and 71.5 percent for the New Orleans-based Fifth Circuit.

Based in New York, the Second Circuit was reversed at a 60 percent rate while the high court reversed the Boston-based First Circuit 58 percent of the time over the last two terms.

But the lowest reversal rate of all the circuits, at least suggesting the closest legal alignment with the Supreme Court, was 50 percent enjoyed by the Denver-based 10th Circuit. As an alternative to creating a whole new circuit, Ducey and his fellow Republicans would like Arizona to jump from the Ninth Circuit to the 10th Circuit.

The governor has revived his campaign in the heat of the Republican primaries. But he started last fall, writing to House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell.

"Congress should specifically consider reorganizing the Ninth Circuit by realigning the District of Arizona with the 10th Circuit, or by creating a new circuit court of appeals consisting of Arizona and other noncoastal states," Ducey wrote.

Although the concept of circuit-shopping is not a new one politically, Barry with the Alliance for Justice said circuit-splitting initiatives are dangerous to the stability and independence of the legal system - and likely have nothing to do with any serious desire for judicial reform.

"Breaking up a court that you don't like, that issues decisions that you don't agree with, is really a dangerous precedent," he said. "If this were a genuine effort to create fair courts and consistent courts, then the reform proposals would look very different."

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