Proposed Ninth Circuit Split. The Icebox Cometh: A Former Clerk's View of the Proposed Ninth Circuit Split

Most academic commentators oppose splitting the Ninth Circuit Court of Appeals. They argue that the court's size is a virtue and either deny that the court has size-related problems, such as workload, consistency, and reversal rate, or claim that a split would not address these problems. The U.S. Congress, however, is less sure. It has appointed the Commission on Structural Alternatives for the United States Courts and asked it to study a possible Ninth Circuit split.

This Article provides an "insider's view," that of a former elbow clerk, and reveals that a split would significantly decrease the court's workload and increase its consistency and predictability. The so-named "icebox split," which would sever Alaska, Idaho, Montana, Oregon, and Washington from the Ninth Circuit and create a new Twelfth Circuit, would best improve the administration of justice without violating other important policies governing circuit boundary setting for a definable group of Americans knit together by common interests. This Article concludes that the Ninth Circuit should be split and a new circuit created from the icebox states.