If at first you don't succeed, try, try again. If you're a congressman from Idaho, your version of the proverb from 1840 might be, "If at first you don't succeed, try, try, try, try, try, try, try again."
Echoing the type of persistence suggested by the state motto of "Esto Perpetua," U.S. senators Mike Crapo and Jim Risch are boldly going where Idaho congressmen have gone before (and failed) with the proposal of the Judicial Reorganization Act of 2025 on July 21, 2025. The bill seeks to create a new federal circuit court by splitting the Ninth Circuit Court of Appeals into two in order to help relieve the current case backlog.
Between Crapo, Risch, and U.S. Representative Mike Simpson, lawmakers from Idaho are taking their seventh bite at the circuit-splitting apple since 2019. Why are their attempts to create a Twelfth Circuit Court of Appeals gaining no traction on either side of the aisle?
Deciding if the Lower Court Got It Wrong
The Courts of Appeals were created in 1891, with one for each of the existing nine circuit courts. This was bumped to 10 in 1893 with the creation of a court of appeals for the District of Columbia.
The Eighth Circuit was divided in 1929 to create the Tenth Circuit, and in 1981, the Eleventh Circuit was split out of the Fifth Circuit. The following year saw the combining of the appellate division of the United States Court of Claims and the United States Court of Customs and Patent Appeals to create the Federal Circuit, bringing the total to 13.
While the number of U.S. Supreme Court Justices used to match the number of circuit courts, that stopped in 1891. Circuit court judges are appointed by the president, approved by the Senate, and hold their seats for life or until retirement.
The Ninth Circuit currently consists of 29 judges, the most of any federal circuit court. It is responsible for 15 districts in nine western states and two U.S. territories that are technically Article IV courts. The largest circuit by caseload and territory, it oversees rulings for over 20% of the U.S. population.
Seven Always Has Been My Lucky Number
Previous attempts by Crapo, Risch, and Simpson to establish a Twelfth Circuit Court haven't met with any modicum of success. Crapo's 2025 attempt, filed after Simpson's House bill failed to gain any traction earlier this year, seeks to find support where it has fallen short numerous times before.
Under this proposal, the new Twelfth U.S. Circuit Court of Appeals would take over cases from Arizona, Alaska, Idaho, Oregon, Washington, Montana, and Nevada. The Ninth Circuit would continue to hold sway over California, Hawaii, Guam, and the Northern Mariana Islands. Two additional judges would be appointed, with 18 assigned to the Ninth Circuit and 13 to the Twelfth.
Given the monumental caseload the Ninth Circuit handles, why isn't splitting and expanding being embraced? One reason could be political, as the traditionally liberal-leaning Ninth saw 10 new judges, most with conservative backgrounds, appointed during President Donald Trump's first term. The addition of a new circuit court raises concerns about a severely partisan bench.
Another circuit court would also increase the possibility of more circuit splits, which happen when similar cases in circuit courts have different outcomes. While these can be settled by the U.S. Supreme Court, fewer than 1% of cases in the Circuit Courts are heard by the Justices.
Some might be impressed by the stick-to-their-guns attitude of the Idaho congressmen, while others may view it as myopic and a waste of time. If it doesn't work this time, well, there's always 2027.
Related Resources
- "Click To Cancel" Gets Canceled as Eighth Circuit Strikes Down FTC Rule (FindLaw's Federal Courts)
- Circuit Split, the CFAA, and Employee Misuse of Computers (FindLaw's Legal Technology)
- How Is the Court System Structured? (FindLaw's Litigation and Appeals)
