After my post last week about the en banc decision in Carrera, Alex sent me an e-mail in which he pointed out a couple of interesting things about the decision that I didn't mention. First, the breakdown of judges was 10 to 1. He opined that, with that type of breakdown, it’s hard to see why the case went en banc in the first place. Especially because there was not really an important legal issue.
Alex also pointed out that, over the past couple of years, the Ninth Circuit judges have been more closely split in their en banc decisions. He mentioned big cases such as Doody v. Ryan, Pinholster v. Ayers (aka Cullen v. Pinholster), Richter v. Hickman (aka Harrington v. Richter). Recognize any of those? There was also Sessoms v. Runnels from this past summer. Interestingly, all of them were habeas grants. Of course, not all of the cases were (as Alex put it to me) bitterly split. There was Lee v. Lampert from earlier this year that was actually a unanimous, 11-0 decision.*
*With a concurring opinion from CJ Kozinski.
All of these en banc decisions got me thinking. Empirical research shows that the Ninth Circuit takes far more habeas cases en banc than I saw in the Second Circuit. I think I could count on one hand the number of habeas cases that went en banc in the Second Circuit over the past 15 to 20 years. I have mentioned six in the Ninth Circuit in the past three years. And I think that’s true across the board for all types of cases. The Ninth Circuit takes a lot more cases en banc generally than the Second Circuit. See this link for more info on current en banc cases. To note, there is one habeas case currently pending en banc, Detrich v. Ryan.
Why the disparity in en banc habeas cases? It could simply be that the Ninth Circuit sees that many more habeas petitions, which results in many more likely candidates for en banc review. That’s probably the most likely reason. It’s also probably true that it is more likely for a death penalty case to go en banc and the Second Circuit does not see many habeas death penalty cases while the Ninth Circuit sees a lot of them.
But another contributing factor may be the different en banc processes in each court. The Ninth Circuit’s process is actually different from not just the Second Circuitm but every other circuit. In every circuit, I believe that the voting process is the same. A judge must call for a vote of all of the active judges on whether to take the case en banc. FRAP 35(f). The rule itself does not indicate whether that judge has to be an active judge. The case will go en banc if a majority of the active judges vote to have it go that way. FRAP35(a).
Here’s where the Second and Ninth Circuits differ. In the Second Circuit, the en banc panel will consist of all of the active judges on the court plus any senior judges who were on the original panel. Currently, the Second Circuit has thirteen active judges. And I believe it is at full capacity.
But that’s not a workable process for the Ninth Circuit. There are 28 active judges. If all active judges plus the senior judges on the panel had to sit, it would be completely burdensome. So the local rules of the Ninth Circuit limit the number of judges to sit on any en banc to 11. It’s local rule 35-3, appropriately titled “Limited En Banc Court.” The eleven are the chief judge and 10 of the active judges.*
*Actually, Congress passed a statute that says that any circuit with more than 15 active judges can institute this type of process. I believe that the only other circuit that qualifies is the Fifth with 17 active judical positions. But that court has not instituted this procedure.
I think that the limitation on the number of judges makes it easier for the court to vote a case en banc. Outside of the CJ, there is less than a 50% chance that a judge who votes for an en banc hearing will have to sit on the panel. I would think that this would have an impact on voting patterns – a yes vote would not automatically mean more work for the individual judge.
Another interesting aspect is that the 10 judges beyond the CJ are selected at random. This means that the judges who sat on the original panel may not end up sitting on the en banc panel.
That’s precisely what happened in Carrera. None of the three judges on the original panel sat on the en banc panel. Two were active and one was a senior judge. I don’t see any rules that excludes the original panel from sitting en banc. In fact, I went and looked at the en banc in Pinholster and two of the judges in the original panel sat in the en banc panel (one was CJK, who had to sit on the en banc). It really is a random selection of the active judges.
The fact that the original panel members may not end up on the en banc panel may weigh in favor of more cases going en banc. I think that the Second Circuit judges limit the number of en banc cases in order to prevent the proverbial stepping on each other toes. They want to remain collegial and respectful to each other. Not sure if that’s the best motivation, but that seems to be one main reason why so few go en banc.
However, in the Ninth, because the original panel may not show up on the en banc panel, that does provide a level of buffer. The judges on the en banc panel could potentially reverse the original panel without having to face any members of the original panel. Because there is no guarantee that the original panel will be there, a voting judge may not feel it necessary to be deferential. It makes it easier to say that those judges got it wrong.
On the other hand, I guess it could be the opposite. It isn’t really too fair to the members of the original panel that they don’t automatically get to sit on the en banc panel. With this in mind, a voting judge may think it is more respectful to be deferential to the original panel because the original members may not be there to defend their positions.
In any event, whatever the reasons why, the Ninth Circuit takes a lot more cases en banc than the Second Circuit. That is definitely true for habeas cases.
One last thing to note, the local rules do say that all 28 judges of the Ninth Circuit can rehear an en banc case en banc. The literal en banc2. The idea of that is pretty awesome.
Unfortunately, it has never happened. But, in the words of the immortal Wooderson, it would be a lot cooler if it did.