Re-Thinking En Banc

Briefly:  the US is geographically (for the most part) divided into 13 federal “circuits” for purposes of bringing appeals from the lower federal courts. The 1st circuit sits in Boston.  The 2nd in New York.  The 3rd in Philadelphia. The 9th in San Francisco.

You get the idea.

They have to deal with a lot of cases, and although all the circuits have probably 15-20 judges or so, to handle the workload they hear their cases in three judge panels.

If a litigant doesn’t like what the three judge panel did they can try going to the SCOTUS.  This is a long shot, but it’s actually a better shot than the alternative of asking the circuit court to reconsider the matter “en banc”, meaning that all the active judges of the circuit court vote on it.

The 2nd circuit is notoriously stingy with en banc review and it’s a long tradition.  Indeed one of the more famous judges from that court, Learned Hand, didn’t believe en banc review was a proper or helpful practice.

We’ll venture a guess that the venerable Judge Hand is being vindicated these days.  Why do we go out on that limb?

Take a look at an en banc opinion that came down from the 5th circuit yesterday.  Fifteen judges take part.  It’s at least in part a plurality opinion, meaning no one position got a majority of the judges, which pretty much in turn means means they have resolved the dispute between the parties but have resolved little or nothing in terms of clarifying the applicable law, and since that is kind of the point of hearing the matter en banc one could argue – and people have argued – that the whole thing is a monumental waste of the time and resources of a busy court.

And it gets worse from there with that 5th circuit decision.  It’s 203 freaking pages!  Two judges signed off on the first concurring opinion.  Five judges concur in part and dissent in part.  Then 3 judges dissent entirely and say this:

The en banc court is gravely fractured and without a consensus. There is no majority opinion, but only a plurality opinion that draws six separate dissenting opinions and a special concurrence.

See, when you think about it, this is a tragic result:  a huge amount of effort by very busy people in an attempt to make the law clearer winds up making it murkier.


And this is not an unusual outcome with en banc decisions by federal courts of appeals.  One of the few times in recent years that the second circuit decided a case en banc was very similar:  they got a majority of 9 out of 15, but there were two concurring opinions; one part concur and part dissent; and two dissenting opinions.

Sometimes things like that happen in the SCOTUS also (see here and here), but it seems less often, at least proportionately.

We suspect one of the reasons for this is that federal appeals court judges and SCOTUS Justices are not only very busy people with weighty responsibilities; they are also very opinionated, ambitious and strong-willed people.  Increasing the number of them to consider any particular case also increases the likelihood that you’ll have some kind of disagreement, especially where (as is almost necessarily the situation when en banc consideration is undertaken) the law involved is in need of clarification.

We also suspect that a certain amount of ideological politicization and polarization that has bled into the federal judiciary may be responsible for these “fractured” opinions.

We tentatively throw out one potentially ameliorating measure for general consumption:  the SCOTUS should hear more cases; perhaps there should be more judges on the SCOTUS also, to deal with the workload there.  Which is also considerable.




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3 responses to “Re-Thinking En Banc

  1. Jessie

    If a petitioner seeks cert review from the Supreme Court and is denied, is it possible for that petitioner to seek en banc review from the Circuit Court and/or to petition for cert again at the Supreme Court level?


    • Well, the first part is easy. The time frame for an en banc petition is tight – has to be done within 14 days from the adverse 3 judge panel ruling. If you do it you can’t petition the SCOTUS because you’re still not final in the court of appeals. You have to wait for them to rule on the en banc petition.

      If you let the 14 days go by and don’t ask for en banc review, you’re out of the court of appeals and can petition for cert within 90 days, but if they deny it you can’t go back to the Court of Appeals because the time will have run.

      Now, if you petition for cert and they deny it you can petition for rehearing in the SCOTUS within 30 days (I think) and if they deny that you’re done, but that might not be the absolute end. For example, you have petitioned for them to review your direct appeal ruling and they’ve denied it. You can go back to the beginning and try a “collateral” proceeding back the the trial court, like habeas corpus, and a new round of appeals can ensue, and you can petition them again that way if you lose because the previous denial of cert is not “on the merits” and doesn’t preclude another try in what we lawyers are pleased to call a “different procedural posture”. Plus, you can raise issues in a collateral proceeding that you might not have been able to raise on direct appeal, and maybe the SCOTUS likes those issues even though they didn’t like the other ones. Or maybe they like the issue you raised before now, even though they didn’t then. Sometimes the collateral proceeding is the only time you can raise certain issues because, say, raising them requires evidence from outside the record on appeal.

      Obviously, this whole process can take an awful lot of time: years on the direct appeal, years to go back and do the collateral proceeding from scratch, years to appeal that.

      Does that sound confusing, or daunting, or both?


  2. Jessie

    Just daunting, thanks. You explained it so well, it wasn’t confusing 🙂

    You might have already guessed that my asking pertains to the person I know who is currently awaiting cert review. I’m trying not to get my hopes up. They accept so few cases. But, then, they do accept some and there’s no reason his shouldn’t be one of them. This did answer my question why they went for cert review instead of en banc review. Whether that was the right decision….well, his lead attorney has plenty of federal appellate experience, so I’ll trust that he knows what he’s doing.

    It just takes for-fucking-ever. I’m actually glad cert review is delayed, because we want a ninth justice on the court in the event that the case is accepted. I don’t think there could be a bigger blow than actually getting a hearing by the Supreme Court and then having them split 4-4!

    Speaking of which….and I’m about to get circumspect again, but I think I can provide enough detail for my question to make sense… The petition to the Supreme Court relies in part on a Supreme Court ruling that was decided in between the defendant’s conviction and his first appeal in front of the three-judge panel from the Circuit Court. (The three-judge panel not only rubberstamped the conviction, but made several independent calls on evidence, which I thought was really odd….I did not think they were allowed to do that, but I’m learning the criminal system can, to some extent, do whatever the fuck it wants to do, especially the prosecution. Not that I’m bitter or anything, right? 🙂

    Anyway, so this Supreme Court decision comes down right before the Circuit Court appeal—so close, in fact, that the the Court granted an extension so that arguments based on that decision could be added to the petitions. Now, the defendant’s petition to the Supreme Court is again based heavily on that same Supreme Court decision. It was highly relevant. Even the facts of the two cases are somewhat similar.

    The prosecution initially declined to file a response, but the Supreme Court ordered them to. (The prosecution even got an extension to respond after they initially declined to responded. If I had ever doubted that the prosecution gets all kinds of perks from the court, I doubted no longer. But, ok….enough whining….)

    I read the prosecution’s response the second I could get my paws on it and….oh, my God…. It’s not the original prosecutor, of course, who at least felt passionately about the case—misguided, in my opinion, but undoubtedly passionate. Now it’s been transferred to some federal prosecutor who pooped out eight pages of absolute nonsense. The best part is where they take the Supreme Court decision and interpret it to mean exactly the opposite of what the Court actually said (unanimously, too—so this wasn’t employing a minority opinion or something).

    I’ve discussed the prosecution’s response with a couple of lawyers, one of whom has a lot of experience in the relevant area of law, and I am not the only one who is seeing this. It’s not just ’cause I’m biased or ’cause I’m not a lawyer. The prosecution is interpreting that Supreme Court decision to mean exactly the 180-degree opposite of what the decision actually was.

    So my question: Is that the sort of thing that might actually influence the Court to hear this new case? The decision in question is very recent. With the exception of Scalia, of course, it’s all the same justices on the Court now who made the decision being (mis)referenced. Does the Court ever agree to hear cases on the basis of, “No, dumbass, that’s not what we said”?


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