S-2360-119
Read twice and referred to the Committee on the Judiciary.
Sponsored by Mike Crapo (R-ID)
What it does
This bill would divide the current Ninth U.S. Circuit Court of Appeals into two separate circuits. The new Ninth Circuit would cover California, Guam, and Hawaii. A newly created Twelfth Circuit would cover Alaska, Arizona, Idaho, Montana, Nevada, Oregon, and Washington. The bill would also add two new judgeships, set the new Ninth Circuit at 18 judges and the Twelfth Circuit at 13 judges, establish court locations for each circuit, and provide rules for transferring pending cases and reassigning existing judges between the two new courts.
Who benefits
Litigants in the seven states of the new Twelfth Circuit who may experience faster case resolution due to a smaller, less backlogged court. Attorneys and businesses in Alaska, Arizona, Idaho, Montana, Nevada, Oregon, and Washington who prefer a court with a different geographic and ideological composition. The President and Senate majority at the time of enactment, who would gain the opportunity to appoint two new circuit judges immediately. Conservative legal advocates who have long argued the Ninth Circuit is too large and too slow. State and local governments in the new Twelfth Circuit states seeking more predictable federal appellate review.
Who is hurt
Litigants with pending cases in the former Ninth Circuit who may face procedural disruption during the transition period. Judges of the current Ninth Circuit who would be reassigned based on their duty station, with limited choice. Legal organizations and advocacy groups that have strategically filed cases in the Ninth Circuit based on its current composition. Taxpayers who would bear the cost of new court facilities, administrative infrastructure, and two additional judgeships. Court staff and administrative personnel who would face organizational restructuring over the two-year transition period.
Supporters argue
Supporters argue that the Ninth Circuit is by far the largest federal appellate court in the country — covering 20% of the U.S. population across nine states and two territories with 29 active judges — making it uniquely unwieldy and slow. They contend that the circuit's size produces inconsistent rulings within its own jurisdiction, since en banc panels of only 11 judges can create binding precedent that conflicts with other three-judge panel decisions, and that splitting the circuit would bring it closer in size to every other circuit court. Supporters also point to the circuit's historically high Supreme Court reversal rate as evidence that its current structure produces less reliable legal outcomes.
Opponents argue
Opponents argue that the primary motivation for splitting the circuit is to dilute the influence of a court that has frequently ruled against federal executive actions, making this a politically driven restructuring rather than an administrative fix. They contend that the Ninth Circuit's caseload per judge is not dramatically higher than other circuits, and that the court has already implemented internal reforms — including smaller en banc panels — to manage its size. Opponents also argue that creating a new Twelfth Circuit would generate years of legal uncertainty as conflicting precedents develop between the two new courts on issues previously settled by the unified Ninth Circuit.
Constitutional context
Congress has broad authority to establish and reorganize the federal judiciary under Article III and Article I of the Constitution, which give Congress the power to create inferior courts and set their structure. No active Supreme Court doctrine directly constrains this power, and prior circuit splits have been upheld. The bill does not raise Equal Protection or other civil rights constitutional issues despite its civil rights category classification.
Checks and balances
Congress gains authority to reshape the federal appellate landscape and create new judicial appointment opportunities; the President gains two new circuit court nominations subject to Senate confirmation; the judiciary itself has no formal veto over its own reorganization, though existing judges retain their commissions and seniority under Article III protections.
Historical precedent
Congress has reorganized federal circuits before, most recently splitting the Fifth Circuit in 1981 to create the Eleventh Circuit, which covers Alabama, Florida, and Georgia — a split that took effect without major constitutional challenge.