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Split the 9th? No, Says Former Circuit Judge

This post was written by Judge William A. Norris (bio here), senior counsel in Akin Gump’s Los Angeles office and member of the U.S. Court of Appeals for the Ninth Circuit from 1980 to 1997. To read a previous post regarding the proposal mentioned below, click here.

In a recent Los Angeles Times op-ed piece (link here), Vanderbilt law professor Brian Fitzpatrick, in arguing that the Ninth Circuit should be split into two or more circuits, attempts to link the Ninth Circuit’s size to its Supreme Court reversals. As an example of a case decided by “extreme” Ninth Circuit judges, he cites the holding that the First Amendment is violated by the inclusion of the words “under God” in a public school recital of the Pledge of Allegiance. “Not surprisingly,” Fitzpatrick says, the case was unanimously reversed by the Supreme Court.

What Professor Fitzpatrick did not say was that the Supreme Court’s reversal had nothing to do with the merits of the Ninth Circuit’s First Amendment analysis. The Supreme Court dismissed the case, not on First Amendment grounds, but solely on the ground that a father who did not have custody of his elementary school child had no standing to bring the case in the first place. Nor does he tell us that the “bizarre” Ninth Circuit opinion was written by Judge Alfred T. Goodwin, a former Oregon Supreme Court justice who was appointed to the Ninth Circuit by President Nixon. In his scholarly opinion, Judge Goodwin meticulously reasoned that the outcome of the case was controlled by Supreme Court precedent. As everyone who knows anything about Judge Goodwin knows, it is laughable to label him an “extreme judge.”