Buck In Brief

Don't Split the Circuit

In Brief: The Ninth Circuit's willingness to apply federal environmental laws as they were written has earned the court some powerful enemies in Washington. Anti-environmental forces figure that dividing the court in two would help them get freer access to the natural resources on public lands in the West. They're trying again.

11/15/05

The Court of Appeals for the Ninth Circuit is a critically important court for the environment. The Ninth Circuit includes the states of California, Oregon, Washington, Nevada, Idaho, Montana, Arizona, Hawai'i and Alaska. Those states contain roughly two-thirds of the National Forest System and contain almost 200 milllion more acres of parks and other national heritage lands. The geography of the Court is home to hundreds of species protected by the Endangered Species Act, constitutes the entire Pacific coastline of the United States, and supports almost 60 million Americans whose health depends on clean air and water.

The Ninth Circuit's willingness to apply federal environmental laws as they were written has made the court some powerful enemies in Washington, including the timber, mining and oil industries as well as local Western politicians eager for development. Unhappy with the court's rulings, anti-environmental forces and right-wing politicos are trying to get different judicial results by tinkering with the structure of the court itself. Getting their way is the point, and they're willing to do whatever that may take.

In 2004, the House narrowly approved legislation containing a provision authored by Republican Congressman Mike Simpson of Idaho that would have divided the Ninth Circuit into three parts -- a shrunken Ninth Circuit overseeing only California, Hawai'i, the Northern Mariana Islands, and Guam; a new 12th Circuit serving Arizona, Nevada, Idaho, and Montana; and a new 13th Circuit serving Alaska, Oregon, and Washington. Breaking up the Ninth Circuit was justified, fumed Rep. Rick Renzi, an Arizona Republican pointing to a Ninth Circuit ruling about livestock grazing on public lands and another that removed the phrase "under God" from the Pledge of Allegiance as unconstitutional: "These contemptuous judgments tear at the moral fabric of our nation, disregard the will of the people and force a corrupt ideology upon our society." That bill went nowhere in the Senate, and as a result new legislation to split the Circuit has been introduced in the House as well as the Senate again this year.

The official explanation for the split has nothing to do with its purpose, which is to assure that federal environmental laws are interpreted differently for places like Idaho or Alaska by redrawing the Circuit. The backers of H.R. 4093 and S. 1485 claim instead they are only trying to help the court become more effective and efficient.

Neither Chief Judge Mary Schroeder nor the Judicial Conference of the United States (the judge-run agency charged with the administration of federal courts) wants that help. The Ninth Circuit's judges don't either -- 21 out of 24 of them, including conservative leading light Alex Kozinski, have publicly opposed any split. The American Bar Association, among other bar groups, also opposes a split. And the price tag of up to $100,000,000 extra for a new circuit or two isn't deterring the gerrymandering effort either.

The real issue here, as the outburst from Rep. Renzi reveals, is the role of federal courts. The constitution created the Judicial Branch as a check on the President and on Congress, to assure that both stay within their assigned powers. To fulfill that constitutional role, the Ninth Circuit is not supposed to cater to Congressional notions of ideology or reflect political fashion-instead, it must follow and interpret laws as they are written. Right-wing politicians want to transform federal courts in the West and around the country into something else: a policy shop that takes it cues from Hill politics and self-defined morality rather than established legal principles. If the Ninth Circuit won't play ball, goes their thinking, it must be refashioned into something more compliant.

Federal courts can be controversial if they fulfill their constitutional responsibilities. But they are a crucial part of the system of balances and limits built into the constitution. Rigging the courts by appointing judges committed to an ideology is one way to eliminate those limits; another is to jimmy the court system itself. In 1997, Chief Justice William Rehnquist appointed the Commission on Structural Alternatives for the Federal Courts of Appeals to study the federal appellate court system. The Commission consisted of five members -- retired Supreme Court Justice White, a lawyer and past President of the American Bar Associate, and three federal judges. The Commission's final report eight years ago recommended against dividing the Ninth Circuit. More important, perhaps, the report also repudiated the philosophy behind the current Circuit-splitting proposals: "There is one principle that we regard as undebatable," the Commission wrote. "It is wrong to realign circuits (or not to realign them) and to restructure courts (or to leave them alone) because of particular judicial decisions or particular judges." That approach is still just as wrong today.

Vawter "Buck" Parker, Executive Director
buckparker@earthjustice.org