Senators representing every state in the latest iteration of the projected Twelfth Circuit recently revived the idea by introducing Senate Bill 956, a proposal that closely resembles a measure debated by Congress in 1990. The new bill's sponsors contend that certain factors, principally the Ninth Circuit's substantial size and burgeoning docket, have now made division of the court imperative.
This Article initially describes the origins and development of the proposed legislation. It then assesses the measure and arguments for and against dividing the Ninth Circuit. I find that there is no greater need for bifurcation now than before and that the disadvantages of division quantitatively and qualitatively outweigh its benefits. Indeed, knowledgeable federal court observers differ over one of circuit-splitting's most frequently proffered justifications: that growing caseloads create complications which are sufficiently problematic to warrant solutions as controversial as dividing appeals courts. Some experts even consider anachronistic the century-long congressional practice of creating additional judgeships and bifurcating circuits.
I recommend that Congress not split the Ninth Circuit, but rather explore fundamental reforms, several of which concern the entire appellate court system. If Congress believes that these alternatives and Senate Bill 956 are unpalatable, it should scrutinize comparatively modest approaches, principally more circuit experimentation and additional study of the appeals courts and their expanding dockets. Were Congress to find unpersuasive the strong evidence of the inadvisability of dividing circuits and to consider seriously the legislative proposal, this Article provides suggestions for improving the measure.
Carl Tobias, The Impoverished Idea of Circuit-Splitting, 48 Emory L.J. 1357 (1995)