By Nichols, Hans S.
Insight on the News , Vol. 18, No. 11
Laurence Tribe may be the most liberal lawyer in America. Yet, at a Senate committee hearing in December, he warned of the "international embarrassment" that could befall the country if "some rather liberal judge out in the 9th Circuit" were to involve that court in prosecuting terrorists.
Tribe's comments caught the attention of top Bush officials and Republican senators. If someone such as Tribe, a Harvard law professor who has represented both O.J. Simpson and Al Gore, is offering such ready criticism of the 9th U.S. Circuit Court of Appeals, it's a dire sign indeed. The "runaway court" must have fallen off the left coast and into the Pacific.
Of course, geographically, the sprawling 9th Circuit long has been in the Pacific. It's also in the Rockies, notes Rep. Mike Simpson (R-Idaho), author of legislation to break the court into more manageable entities. Stretching from the Northern Marianas to Montana and from Alaska to Arizona, the 9th Circuit covers 38 percent of this country's landmass and houses 20 percent of its population. "It's clear that the 9th Circuit is far too large to respect what our Founding Fathers had in mind when they determined the size of the federal courts," Simpson tells INSIGHT.
No one can dispute that the 9th Circuit is the largest in the country. What is contested, however, is just how much of a "rogue court" it is, if at all. Conservatives long have charged that its reversal rates by the Supreme Court are disproportionately higher than the other appeals courts. "Twenty percent of the American population lives in the circuit in which the rule of law is regularly being challenged by the issuance of activist opinions by ideologically driven federal judges," says Sen. Jeff Sessions (R-Ala.).
"How does the joke go?" asks Michael Horowitz, a judicial scholar at the Hudson Institute. "Judge, I'm appealing a ruling from the 9th Circuit, but I have other reasons as well."
That this circuit has become a judicial laughingstock might be treated as a mere oddity if there were a remedy in sight, say Republican aides, conservative activists and nonpartisan judicial scholars. The court may be in "La-La land," as Simpson puts it, but not everyone agrees with this characterization. Defenders explain its high reversal rate as part of the natural tension between the trial and appeals courts, claiming that this can have a positive impact on the rule of law.
In any event, most of today's hot-button legal issues find a flash point in the 9th Circuit -- from assisted-suicide laws in Oregon to the legalization of medical marijuana in California to a wide range of privacy issues on police searches and seizures. In February, the court made news by chipping away at the widely successful and voter-approved "three-strikes-and-your-out" law in California.
But according to county district attorneys in Western states, the damage done by this court's rulings are difficult to quantify. They believe that law-enforcement officers are reluctant to pursue leads aggressively for fear that the court ultimately will reprimand them. "It's really demoralizing," says Josh Marquis, the district attorney in Clatsop County, Ore.
The last stop before the Supreme Court, the U.S. Courts of Appeal are divided into 11 geographic districts. While the appeals courts -- and, below them, the federal circuit courts -- hear thousands of cases each year, the Supreme Court usually weighs in on only a handful. For example, in the 1999-2000 term, 67 cases reached the high court. Typically, the number ranges from 50 to 120 per year, legal experts say.
According to dozens of legal scholars and former judicial clerks, the 9th Circuit has more than earned its reputation as a "runaway court." It has by far the highest overrule record since the federal judiciary was expanded in 1978. In one year, the 1996-1997 session, the Supreme Court reversed 27 of the 28 cases it considered from the 9th Circuit. …