Jeff Flake and Doug Ducey
Justice is not being served.
Swift access to the courts is a foundational tenet of our justice system. But, for far too long, Arizonans and many other Americans have been denied this important constitutional right.
The reason? Our state falls under the jurisdiction of the U.S. Court of Appeals for the 9th Circuit. Composed of nine states and two U.S. territories, the oversized and overburdened 9th Circuit hears approximately 12,000 appeals each year—at least 30 percent more than the next most active circuit.
For these thousands of cases under consideration, the average turnaround time exceeds 15 months. With no slowing in the deluge of cases filling the docket, the path to justice keeps getting longer.
If excessive delays weren’t bad enough, 9th Circuit rulings are overturned by the U.S. Supreme Court 77 percent of the time. In some years, the 9th Circuit has had three times as many cases reversed as most circuits had before the Supreme Court in total.
An old joke in the Ninth Circuit bar captures the absurdity of this high reversal rate. It goes like this: A law clerk runs into a judge’s chambers holding a printout. “Good News!” he yells enthusiastically. “The Ninth Circuit affirmed you, Judge!” Disappointed, the judge replies, “Well, that may be, but I still think I’m right.”
So not only is the 9th Circuit punishingly slow—in the majority of its decisions before the Supreme Court, the long-awaited ruling is ultimately overturned.
The 9th Circuit is so large that, unlike any other circuit, it almost never sits as a single body, even for the most consequential cases. Whereas every other circuit regularly meets as one court to clarify inconsistencies in law, the 9th Circuit selects 11 of its 29 judges to set circuit-wide precedent.
That means only a third of its judges are deciding the law for the whole court.
With problems like these, is the 9th Circuit too big to properly administer justice? For Arizona, the answer is unquestionably yes.
Arizonans deserve a more efficient circuit court to get cases heard rather than having justice delayed under the heavily encumbered circuit.
In short, Arizonans are waiting too long for justice, and for no other reason than having the geographic and historical misfortune of falling under the overworked 9th Circuit. Arizonans deserve better, and that’s why we’re taking action.
Article I of the U.S. Constitution grants Congress the power to create federal courts “inferior” to the Supreme Court. Congress has exercised this authority before to establish, arrange, and—yes—even rearrange courts. For example, Congress created a new 10th Circuit from the 8th Circuit’s midwestern states and a new 11th Circuit from the 5th Circuit’s eastern-most states.
Through cooperation with and input from those affected, we’ve put together a bill that would allow this historical practice to continue. Our Judicial Administration and Improvement Act, introduced the other week, would allow Congress to invoke its authority under Article I of the U.S. Constitution to create a new 12th Circuit from the 9th Circuit’s mountain states and the Pacific Northwest.
By bringing Arizona, Alaska, Idaho, Montana, Nevada, and Washington together under a 12th “Mountain Circuit,” we will alleviate the 9th Circuit’s enormous caseload and create two smaller appellate courts; where a single, dysfunctional court stood before, we will establish a stronger one—and with stronger local, regional, and cultural ties.
A fair and functioning judiciary is one of the pillars upon which our democracy rests. When we see that pillar begin to erode, elected officials have a responsibility to act. That’s what we’re doing.
The Judicial Administration and Improvement Act will shore up our judiciary and restore confidence in our courts while securing the access to justice that Arizonans deserve.
Read the op-ed here.