WASHINGTON The Supreme Court will wade into a political battle between President Trump and the nation's most liberal appeals court this fall by hearing four cases at the start of its upcoming term that the administration wants overturned.
Tops on the list is Trump's temporary travel ban aimed at immigrants from six majority-Muslim nations and refugees. It was struck down by the 9th Circuit appeals court based in San Francisco, as well as the 4th Circuit appeals court in Richmond. The justices partially reinstated the ban in June and will hear oral arguments Oct. 10.
A week earlier, three other cases from the 9th Circuit will be heard, including two immigration cases set for re-argument because an eight-member court apparently could not reach a decision last term. The addition of conservative Justice Neil Gorsuch likely tilts the court against the immigrants who won at the appeals court level.
The last case pits decisions made by the 9th and 7th Circuit appeals courts against the 5th Circuit's ruling that forced arbitration clauses in employee contracts do not violate federal law. The 9th Circuit ruled in favor of the workers. In an unusual move, the Justice Department under Trump has switched sides and now favors employers.
In all four cases, the 9th Circuit judges in the majority were named by Democratic presidents, while the dissenting judges were Republican appointees. The travel ban case was unanimously decided by three of Bill Clinton's judges, who dominate the appeals court.
Trump has derided the California-based court ever since its judges ruled against an earlier version of his travel ban in February. He stepped up his criticism by calling for the circuit to be broken up after a federal district judge in California who does not sit on the appeals court temporarily blocked the president's order cutting funds to sanctuary cities in April.
First the Ninth Circuit rules against the ban & now it hits again on sanctuary cities both ridiculous rulings. See you in the Supreme Court! Trump tweeted in April.
The appeals court is by far the nation's largest, spanning nine western states as well as Guam and the Northern Mariana Islands. Though there are 11 regional circuits, the 9th contains 20% of the nation's population, and its 29 full-time judges hear more than 12,000 appeals annually nearly twice as many as any other appeals court.
Arizona Sens. Jeff Flake and John McCain have proposed splitting it into two circuits, something Trump has endorsed but Democrats and liberal interest groups oppose.
"The most responsible solution is to break up the 9th Circuit and move Arizona, along with other Western mountain states, into a new court with stronger local, regional, and cultural ties," Flake said during a field hearing in Phoenix last week.
Critics of the appeals court, which has 28 full- and part-time judges named by Democratic presidents and 15 named by Republicans, also claim it is overruled by the Supreme Court more often than any other court. But those statistics vary year to year and are disputed by supporters.
"The simple fact is that calls by President Trump and Senate Republicans to split the Ninth Circuit are simply a political response to decisions they dont like, Sen. Dianne Feinstein, D-Calif., the ranking Democrat on the Senate Judiciary Committee, said.
Emblematic of those decisions was a 2002 case in which the appeals court ruled that the words "under God" in the Pledge of Allegiance were unconstitutional for religious reasons. The Supreme Court overturned that ruling two years later.
The four cases that will be heard by the high court in October represent examples of the appeals court's political leaning, critics say:
A three-judge panel of the appeals court upheld a federal district court judge's ruling in Hawaii that the travel ban was unconstitutional. The panel did not rule on religious grounds, as other courts had done. Instead, it said Trump exceeded his power to regulate immigration.
In Jennings v. Rodriguez, the appeals court ruled that immigrants facing deportation are entitled to bond hearings at least every six months. In January, however, Trump ended the "catch and release" policy that required such hearings. The justices likely were tied 4-4 on the case and rescheduled it for the second day of the new term.
On the court's opening day, the court will hear another immigration case it appears to have deadlocked on last term. In Sessions v. Dimaya, the 9th Circuit ruled that an immigrant could not be deported based on two burglary convictions because the law supporting his removal was unconstitutionally vague.
And on the same day, the Supreme Court will consider a major workers' rights case challenging arbitration agreements that prevent employees from filing class action lawsuits against employers. The 9th Circuit is one of two appeals courts to side with the workers, against a third appeals court that supported forced arbitration.
"By any reasonable assessment, the 9th Circuit is broken," says Mark Pulliam, contributing editor at the Library of Law and Liberty. "It is too big, has too many judges to maintain doctrinal coherence, and its decisions often fail to conform to applicable law, including Supreme Court precedents."
But more than 150 organizations signed a letter to the Senate Judiciary Committee from the liberal Alliance for Justice calling the attacks political and urging lawmakers to keep the circuit intact.
"President Trump has led the recent charge to split the Ninth Circuit because he perceives it to be hostile to his unconstitutional agenda," the letter said. "Such results-driven considerations should not dictate the structure of the judiciary. Allowing this ideological campaign to overhaul the judicial branch threatens the integrity and independence of the judicial system."