Short Circuit

If you are a person with even remotely conservative leanings, the Court of Appeals for the 9th Circuit is an easy court to hate.  Recently, the Supreme Court overturned (not surprisingly) a particularly contentious case involving travel restrictions on people from various countries in the Middle East.  This particular court is so disreputable that noted website Politifact managed to give a “half true” score to a tweet by the current president that 80% of the decisions of the court were reversed, since the court ranks third place with just about that many cases overturned that are reviewed by the Supreme Court [1].  Even this website, though, no friend of the president, makes a statement about why this court is known for being so flaky, and tries to give the following excuse:  “It’s possible that the sheer size of the 9th Circuit, as well as some of its procedures, cause it to produce more “outlier decisions,” which are cases the Supreme Court always reverses, than other circuits — leading to a higher reversal rate, University of Pennsylvania law professor Kermit Roosevelt previously told us [1].”

The geography of the 9th Circuit Court of Appeals explains why it is so easy to loathe, like the Justin Beiber of court districts.  It includes the districts of Alaska and Arizona, four districts in California (Central, Eastern, Northern, and Southern), the districts of Hawaii, Idaho, Montana, Nevada, Oregon, and the Eastern and Western districts of Washington, as well as having appellate jurisdiction over the districts of Guam and the Northern Mariana Islands.  The sheer size of this district and the large number of judges–29 of whom are active–as well as the perceived liberalism of California, Oregon, Hawaii, and the Western district of Washington, all make this particular district convenient for targets [2].  Of interest as well is the way that circuit rules allow for a group of 11 judges to be chosen at random among the body of available judges to review decisions.  The results of this appear to harm the credibility of the court in allowing for the possibility of highly skewed decisions that lack legitimacy in the eyes of many people.  It is not likely that the more conservative areas are the cause for all of the trouble, but very likely the way that this district seems dominated by California, with all of the problems that entails.

From time to time the behavior of the courts is something that I comment on as a writer [3].  Frequently courts have made bad decisions.  These bad decisions have come as a result of a consistent set of problems.  Many judges have faulty legal and moral worldviews, and see their position in courts as a way of enforcing those defective worldviews.  Rightly, in an atmosphere of political conflict such as contemporary times, people see the behavior of the courts as biased and attempting to grant legitimacy to some viewpoints and not to others.  Often courts attempt to settle problems by dicta, putting themselves as unjust arbiters of the problems of our divided society.  Judges feel the need to be independent of the legislative and executive branches, but few judges feel it necessary or proper to be free of their own internal biases.  This makes choosing judges with the proper worldviews of all the greater importance.  Nor is this a new problem–throughout American history the Judicial branch as had a well-earned reputation of being out of step with the larger public, whether that has been in enforcing activist interpretations of government or dealing clumsily with questions of social change like slavery, racism, and abortion, among many others.

Generally, the Supreme Court has fared poorly when it has attempted to decide on political matters without there being a larger societal consensus and without those decisions being made in accordance with what is right and just.  It stands to reason that lesser courts, although generally they have a lower profile, suffer from the same problems.  Legitimacy is a tricky matter, in that depends on maintaining closeness with both the higher law of God’s Word and the lower standard of popular acceptance.  Losing track with either standard can be fatal to the reputation of authorities.  In a republic such as our own, there is limited stake for authorities to be far more morally upright than the people at large–witness the justice of the cases against removal like Worcester vs. Georgia and their total lack of enforcement because of the injustice of the times.  In such cases just judgment is futile because the people are unjust.  In other cases, though, courts have been in advance of the people at large when moral corruption is concerned, and in doing so courts have lost legitimacy because they have forgotten that they too are servants of God and accountable to His laws and His higher authority.  This appears to be the case in the 9th Court of Appeals to a particular degree.

What can be done about this?  At present, many of the authorities in society appear to be in a race as to who can surrender their legitimacy as authorities as quickly as possible.  There is little that can be done, for example, that would make the 9th Circuit Court of Appeals less well-respected than they make themselves through their own decisions.  Likewise, the structure of the political system makes it unlikely that such judges can be quickly removed once they are put in office.  The best way to deal with such issues is to make sure that courts are filled with able jurists with the right worldviews to the best extent possible.  It is also important to maintain some respect in authority and institutions in the abstract so that the presence of wicked authorities does not destroy the trust and loyalty to those institutions that is necessary for the well-being and general ordering of society as a whole.  These are not easy matters to deal with in times like our own, but as is often the case, little that is worth having is easy, whether in our justice system or any other area of our lives.



[3] See, for example:

About nathanalbright

I'm a person with diverse interests who loves to read. If you want to know something about me, just ask.
This entry was posted in American History, History, Musings and tagged , , , . Bookmark the permalink.

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