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.
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.