This article originally appeared in The San Francisco Chronicle on December 13, 2020.
In the late 1970s, President Jimmy Carter, with a Democratic supermajority in the Senate, doubled the size of the San Francisco-based Ninth Circuit Court of Appeals and appointed some of the most liberal judges in American history. By 1980, Carter’s 15 appointments meant nearly 70% of the court’s judges were Democrats.
Some would later become household names, both celebrated and reviled: Stephen Reinhardt, Harry Pregerson, Betty Fletcher, and others made mainstream news for overturning controversial laws banning same-sex marriage and assisted suicide, battling enforcement of the death penalty, and protecting the environment from rampant destruction. Conservatives would come to sneer at the “Ninth Circus” and snicker at the “Nutty Ninth,” which regularly found itself atop Supreme Court reversal tallies. Republicans in Congress spent decades futilely demanding the massive circuit — encompassing 11 western states and territories covering 60 million people — be broken up.
Fifty years and one President Trump administration later, that’s all over with.
After beginning his tenure at stark odds with the court — Trump called the Ninth Circuit a “Complete & Total Disaster” on Twitter after it thrice rejected his travel ban and prevented him from denying funding to sanctuary cities — he is ending it having made a dramatic mark. With 10 new appointments in the past two years, more than a third of the court’s full-time “active” judicial roster, it now sports 16 Democratic appointees and 13 Republican ones. The semi-retired “senior” judges count 11 Republican appointees and 7 Democrats — and among the latter set, at least one, Richard Tallman, is a conservative appointed by President Bill Clinton as part of a deal with the Republican Senate.
That makes for 24 judges on the court appointed by Republicans and 23 judges appointed by Democrats. Counting Tallman as a Republican, it’s a 25-22 split in the conservatives’ favor.
You read that right: The famously liberal Ninth Circuit Court of Appeals now has more Republican judges than Democrats. The court most loathed by the conservative movement is, for the first time in more than a generation, now loosely within its grasp.
The Ninth Circuit’s jurisprudence has started shifting along with its alignment — but the process is slow. The court is bound by its own precedents, which for half a century have often leaned well to the left. And only active judges, among whom Democrat appointees still slightly edge out Republican appointees, can call for cases to be reheard by 11-judge “en banc” super-panels, which are the sole way the court can overrule its own precedents.
But change it will, over time.
The vast majority of appeals are heard by three-judge panels, which can create precedent where none exists, and litigants now have nearly an equal chance of drawing a majority of Republican appointees on a three-judge panel as Democrats. Only about 15 or 20 appeals a year are selected for en banc review anyway, meaning the vast majority of criminal appeals, immigration petitions, consumer-business disputes, environmental challenges, bankruptcies, Social Security reviews and everything else that goes on appeal in federal court will never face an en banc inquiry.
Even after the judges have chosen to review a case en banc, the procedures the court employs don’t really favor the Democrat appointees’ slight majority all that much either, since the 11 judges who sit on the super-panel are randomly drawn.
The court’s roster shift has already made a difference in practice.
In a major abortion and free speech case earlier this year, a Ninth Circuit en banc panel affirmed a Trump administration regulation that prohibits any part of $300 million in federal funding for family planning organizations from flowing to groups that include abortion among the topics of their counseling. In another en banc ruling this year, the Ninth Circuit found a convicted burglar was too late to file a habeas corpus petition alleging a fundamental error in his criminal conviction, despite his own lawyer’s partial responsibility for the delay — a surprising result for anyone who’s followed the court’s decades of pro-habeas jurisprudence.
The change is even more pronounced because of who on the Ninth Circuit has been replaced. Judge Stephen Reinhardt, the “liberal lion” who served for nearly 40 years and wrote opinions finding bans on assisted suicide and same-sex marriage unconstitutional, and joined one invalidating the Pledge of Allegiance, died in 2018. He was replaced by Kenneth Lee, a former assistant to President George W. Bush and frequent Federalist Society speaker. Harry Pregerson, who once engaged in an all-night battle with the Supreme Court over the death penalty and ruled federal marijuana laws unconstitutional, died in 2017; he was replaced by Daniel Collins, a former clerk to Justice Antonin Scalia who co-authored the PATRIOT Act in 2003 and represented the tobacco industry in private practice. Alex Kozinski, an idiosyncratic appointee of President Ronald Reagan who was a notable skeptic of government authority when wielded against both criminals and businesses, retired under a #metoo cloud in 2017; his replacement is Daniel Bress, another former Scalia clerk who served on Federalist Society executive committees.
And it is, indeed, a change.
Sitting on three-judge panels, Lee wrote an opinion tossing out California’s law banning high-capacity gun magazines as violating the Second Amendment. Collins wrote an opinion that a cannabis dispensary could not challenge nearly $2 million in surprise IRS assessments because their overnight FedEx arrived a day late. Bress wrote an opinion that a migrant who pleaded guilty to illegally entering the United States could not later claim he was denied due process and equal protection rights. It’s hard to picture Reinhardt, Pregerson or Fletcher joining any of these opinions, let alone writing them.
Lee is 45 and Bress is 41. Collins, at 57, is one of the oldest of Trump’s lifetime appointments to the Ninth Circuit. The average age of his judges is 48.
Whether the Ninth Circuit’s Republican lean lasts depends on what kind of judges President Joe Biden nominates — and how they fare in what will likely be a Republican-controlled Senate. Will Biden choose stridently progressive nominees that never make it out of committee to fill any seats that come open, or will he negotiate with the Republican leadership to appoint consensus picks? And will the Republican leadership compromise with Biden at all, or will Senate Majority Leader Mitch McConnell prefer to keep seats empty, in the hope that one day Republicans regain the White House while keeping their Senate control?
Either way, with congressional Republicans starting to dream of a Ninth Circuit as conservative as it once was liberal — and already boasting a gleaming regiment of young, energetic judges ready to spend decades whittling away at California’s tight gun restrictions, blessing Arizona’s strict immigration laws, and reining in the liberal Western states’ experiments with left-wing government — serious legislative proposals to split the court are suddenly hard to come by.
Ben Feuer is the San Francisco-based chairman of the California Appellate Law Group LLP*, a boutique appellate law firm that specializes in the Ninth Circuit, U.S. Supreme Court, and California appellate courts. You can reach him at email@example.com or www.calapplaw.com.
*In July 2022, the California Appellate Law Group was renamed the Complex Appellate Litigation Group.
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