O’Scannlain Discusses Ninth Circuit Split



Harvard Law alumnus and Ninth Circuit Court of Appeals Judge Diarmuid F. O’Scannlain ’63 spoke to 40 students on Thursday, March 16 at a Federalist Society sponsored event. The topic of his speech, “Ten Reasons Why the Ninth Circuit Should be Split,” touched on a number of issues affecting the circuit with the largest case load, number of judges, and territory.

The impetus for this speech came after his article on the topic, published in Engage last October, elicited a response in opposition by fellow Ninth Circuit Judges Mary M. Schroeder and Stephen Reinhardt. Judge O’Scannlain was originally opposed to splitting the circuit until the 1990’s, believing that the supporters were motivated by political opportunism aimed at curbing the political tilt of the court. However, he now sides with the findings of two Congressionally appointed commissions recommending appellate reconfiguration.

The Ninth Circuit has a total of 51 judgeships, making it two and a half times as large as the average circuit court, and it receives over 23% of the total appeals filed across the nation. O’Scannlain also criticized the inefficiency of having a court whose jurisdiction ranges over nearly 40 percent of the total land mass of the United States. To deal with the massive caseload, the Ninth Circuit has instituted a limited en banc procedure, allowing a minority of judges to publish conflicting opinions under the banner of the entire court.

After addressing his ten reasons, Judge O’Scannlain proposed accepting the most active legislation that came at the end of last year’s budget reconciliation. HR 4093 would make a new Twelfth Circuit out of Alaska, Arizona, Idaho, Oregon, Nevada, Montana, and Washington, keeping California, Hawaii, Guam, and the Northern Marianas as the Ninth Circuit.

In response to a question from the audience, O’Scannlain also addressed where the balance would lie between continuing to split circuits, as has been done a number of times since 1789, and having too many dueling appellate courts. He suggested limiting the number to somewhere around 15 and limiting case growth by allowing discretionary review and removing certain administrative cases to a separate, central court system.

O’Scannlain ended his speech by adding that he believed “a restructuring is inevitable,” and he hoped that those in opposition would “participate in planning the circuit’s future in the hope of finding the most effective means of implementing a split.”

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