It also has appellate jurisdiction over the following territorial courts:
Headquartered in San Francisco, California, USA, the Ninth Circuit is by far the largest of the thirteen courts of appeals, with 28 active judgeships. (As of January 21, 2009, under the provisions of the Court Security Improvement Act of 2007, the Circuit will get a 29th seat). The court's regular meeting places are Seattle, Portland, San Francisco, and Pasadena, but panels of the court occasionally travel to hear cases in other locations within its territorial jurisdiction. Although the judges travel around the circuit, the court arranges its hearings so that cases from the northern region of the circuit are heard in Seattle or Portland, cases from southern California are heard in Pasadena, and cases from northern California, Nevada, Arizona, and Hawaii are heard in San Francisco. For lawyers who must come and present their cases to the court in person, this administrative grouping of cases helps to reduce the time and cost of travel.
|Year||Jurisdiction||Total population||Pop. as % of nat'l pop.||Number of active judgeships|
|1891||CA, ID, MT, NV, OR, WA||2,087,000||3.3%||2|
|1900||CA, HI, ID, MT, NV, OR, WA||2,798,000||3.7%||3|
|1920||AZ, CA, HI, ID, MT, NV, OR, WA||7,415,000||6.7%||3|
|1940||AZ, CA, HI, ID, MT, NV, OR, WA||11,881,000||9.0%||7|
|1960||AK, AZ, CA, GU, HI, ID, MT, NV, OR, WA||22,607,000||12.6%||9|
|1980||AK, AZ, CA, GU, HI, ID, MP, MT, NV, OR, WA||37,170,000||16.4%||23|
|2000||AK, AZ, CA, GU, HI, ID, MP, MT, NV, OR, WA||54,575,000||19.3%||28|
The large size of the current court is due to the fact that both the population of the western states and the geographic jurisdiction of the Ninth Circuit have increased dramatically since Congress, in 1891, created the United States Court of Appeals for the Ninth Circuit. The court was originally granted appellate jurisdiction over federal district courts in California, Idaho, Montana, Nevada, Oregon, and Washington. As new states and territories were added to the federal judicial hierarchy in the twentieth century, many of those in the West were placed in the Ninth Circuit: the newly acquired territory of Hawaii in 1900, Arizona upon its accession to statehood in 1912, the then-territory of Alaska in 1948, Guam in 1951, and the Commonwealth of the Northern Mariana Islands (CNMI) in 1977. In 1979, the Ninth Circuit became the first federal judicial circuit to set up a Bankruptcy Appellate Panel.
The cultural and political jurisdiction of the Ninth Circuit is just as varied as the land within its geographical borders. In a dissenting opinion in a rights of publicity case involving Wheel of Fortune star Vanna White, Circuit Judge Alex Kozinski sardonically noted that “[f]or better or worse, we are the Court of Appeals for the Hollywood Circuit.” Judges from more remote parts of the circuit note the contrast between legal issues confronted by populous states such as California and those confronted by rural states such as Alaska, Idaho, and Montana. Judge Andrew J. Kleinfeld, who maintains his chambers in Fairbanks, Alaska, wrote in a 1998 letter: “Much federal law is not national in scope…. It is easy to make a mistake construing these laws when unfamiliar with them, as we often are, or not interpreting them regularly, as we never do.”
Many scholars and jurists, like Judge Kleinfeld, cite regional differences between states in the circuit, as well as the practical, procedural, and substantive difficulties in administering a court of this size, as reasons why Congress should split the Ninth Circuit into two or more smaller circuit courts. Opponents of such a move claim that the court is functioning smoothly from an administrative standpoint, and that the real problem is not that the circuit is too large, but that Congress has not created enough judgeships to handle the court's workload. Opponents also point out that over half of the Ninth Circuit's cases come from the state of California, and thus dividing the Circuit would result in whichever portion included California being dominated by cases from a single state. Moreover, many who advocate the preservation of the current Ninth Circuit see politics as a motivating factor in the split movement. They claim that by implementing a scheme that isolates California from the other states in the circuit, the effect of a split will be to dilute the power of judges who have handed down rulings that have angered social conservatives.
According to the most current count, the Ninth Circuit has the highest percentage of active judges appointed by Democratic presidents, with 59%. Until 2003, this percentage was much higher; a political stalemate over judicial nominations subsequently kept several vacancies on the court for several years.
Critics point to this preponderance of appointees of Democratic presidents as evidence that the court has a liberal bias. Such critics often point to 2002's Newdow v. U.S. Congress, in which the court declared that a public school district in Elk Grove, California could not lead students in recitation of the Pledge of Allegiance (as then constituted); the pledge's inclusion of the words "under God," the court held, violated the Establishment Clause. The case was brought by Michael Newdow, an atheist who felt that the daily recitation of the Pledge in his daughter's school violated her First Amendment right to be free from government establishment of religion. In a 2-1 decision, a Ninth Circuit panel held for Newdow, stating that “[t]he text of the official Pledge, codified in federal law, impermissibly takes a position with respect to the purely religious question of the existence and identity of God.” The majority opinion was written by Alfred T. Goodwin, who was appointed to the court by Richard M. Nixon, a Republican.
In 2004, the United States Supreme Court reversed the Ninth Circuit's decision. However, the majority opinion did not reach the substantive issue of whether the Pledge violated the Establishment Clause, instead holding that Newdow, who did not have primary custody of his daughter (the child's mother, whom Newdow never married, had custody), did not have standing to litigate the claim in federal court. Chief Justice William Rehnquist and Justices Sandra Day O'Connor and Clarence Thomas disagreed with the majority's opinion of Newdow's standing, but concurred in the judgment, making this a unanimous decision reversing the Ninth Circuit. Thomas wrote that the Ninth Circuit's opinion was “a persuasive reading of (Supreme Court) precedent,” but then attacked the precedent, particularly Lee v. Weisman. Rehnquist and O'Connor disagreed with the Ninth Circuit's interpretation of the precedent.
Indeed, while the Ninth Circuit had long been instrumental in striking new legal ground, particularly in the areas of immigration law and prisoner rights, it was the Newdow decision that galvanized criticism against what conservatives saw as “judicial activism.” Reaction to the decision by prominent political leaders, especially those in the House and Senate, was passionate. President George W. Bush, through his spokesman Ari Fleischer, called the ruling “ridiculous,” while Senator Charles Grassley called it “crazy and outrageous.” Even mainstream Democrats attacked the decision, with House minority leader Richard Gephardt calling it “poorly thought out.” Criticisms of the Newdow decision were not limited to the substantive law considered by the judges who heard the case; they also attacked the legitimacy and political independence of the court itself. The result was a renewed focus on the Ninth Circuit's caseload and a targeted effort by congressional Republicans to minimize the impact of such decisions.
Another hotly contested case considered by the Ninth Circuit arose from the enactment of a California law permitting the cultivation and use of marijuana for medicinal purposes. In Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003), rev'd sub nom. Gonzales v. Raich, 545 U.S. 1 (2005), a cancer patient sued the federal government, seeking to prevent it from seizing her supply of medical marijuana under the federal Controlled Substances Act. The United States argued that it had the right to enforce its drug laws against Raich notwithstanding the California statute. Raich argued that since the marijuana was grown within California, had never left the state's borders, and was not part of any economic transaction, Congress had no constitutional authority to regulate her cultivation and use of marijuana. In holding for Raich, the Ninth Circuit adhered to two landmark Supreme Court cases, United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000), which had substantially restricted Congress's authority to regulate “noneconomic” activity under the guise of the Commerce Clause to the United States Constitution. In a 6-3 decision, the Supreme Court disagreed with this analysis, adhering instead to a 1942 case, Wickard v. Filburn, 317 U.S. 111 (1942), in which the Court held that cultivation of wheat for personal consumption could be subject to a federal production quota even though the crop never entered the stream of commerce. Interestingly, the three dissenters—voting to uphold the Ninth Circuit—were Chief Justice William H. Rehnquist and Justice Clarence Thomas, considered to be two of the most conservative members of the Court, as well as Justice Sandra Day O'Connor, considered to be the swing vote on the Court at the time. The Raich litigation illustrates that although the result of the Ninth Circuit's decision pleased political liberals opposed to tough federal drug laws, the legal analysis employed by the court was faithful to the principles of federalism and thus wholly “conservative” from a legal perspective.
On the other hand, not every Supreme Court reversal of a Ninth Circuit decision has come in a case where the appellate judges ruled in favor of a group championed by political liberals. In Kyllo v. United States, , the Supreme Court reversed a decision of the Ninth Circuit in favor of the government. The Ninth Circuit had ruled that evidence of a marijuana-growing operation obtained without a warrant by means of a thermal imaging device could be introduced at a criminal trial because the Fourth Amendment did not recognize an expectation of privacy in radiation emanating from a private home. The Supreme Court reversed because a person's home is a place where he has always had an expectation of privacy, such that the search at issue required a warrant.
In March 2007, Justices Anthony Kennedy and Clarence Thomas testified before a House Appropriations subcommittee that the consensus among the justices of the Supreme Court of the United States was that the Ninth Circuit was too large and unwieldy and should be split.