The Court That Just Ruled Against Trump On Refugees Could Face Breakup

The 9th U.S. Circuit Court of Appeals, who upheld a ruling barring enforcement of the president’s executive order on refugees late Thursday, could be broken up into smaller appeals courts in the coming months.

A group of Republican senators is backing legislation that would split the country’s largest — and some claim most liberal — appeals court into smaller, separate jurisdictions.

The effort is led by GOP Sen. Jeff Flake of Arizona, who argues the burgeoning docket on the 9th U.S. Circuit Court of Appeals has dramatically slowed the pace of justice.

“With regard to the court, it’s just access to justice,” Flake said. “Its docket is more than twice as big as the next biggest circuit. This has been a long time coming, and hopefully we can make some progress finally.”

Flake previously introduced legislation creating a new circuit court that includes Alaska, Arizona, Idaho, Montana, and Nevada.

Several Supreme Court justices also voice support for breaking up the 9th Circuit. Justice Anthony Kennedy, former Justices John Paul Stevens and Sandra Day O’Connor, and the late Justice Antonin Scalia all proposed splitting the 9th into three separate courts.

The 9th Circuit is far and away the largest of the federal circuit courts. Fully one-fifth of the country lives under the jurisdiction 9th Circuit, which extends from the Grand Canyon in Arizona, to the far reaches of Alaska, and to the remote Northern Mariana Islands in the central Pacific. As the population of the American West has swelled in the post-war period, so too has the court’s caseload. Judges on the court struggle against a torrent of cases, resulting in lengthy turnaround times.

There is also a question of access. The court hears cases year-round in San Francisco, Pasadena, and Seattle. Though the judges periodically travel to hear cases elsewhere, citizens outside the densely populated coast lack ease of entry into the judicial system.

Though reconfiguring the court for ideological reasons is almost certainly a non-starter with Senate Democrats, legislation breaking up the court for administrative and logistical reasons could gain traction with Democrats.

“The problem has always been that is has a very large and somewhat unwieldy geographic area and caseload, so the question is whether there’s an effective way to deal with those appeals,” Democratic Sen. Richard Blumenthal of Connecticut said. “I’d have to see those details.”

A version of this article originally appeared Jan. 23. 

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