Professor Eugene Volokh wrote me about my last post, En Banc Review Needs To Be Curtailed. Professor Volokh pointed out that I was wrong about “District Court en banc” never being a thing. He pointed out that District Courts have sat en banc on occasion- for instance there were some cases involving the constitutionality of the then-novel federal sentencing guidelines (eventually upheld by the US Supreme Court in Mistretta v. United States), and a Florida case involving the Mariel boatlift. I’m not sure this sort of thing should really be allowed (and it seems to be exceedingly rare), but it’s different from the issues being raised on the Circuit Court of Appeals level with en banc hearings for a couple of reasons: (1) it really seems that this sort of en banc review is simply a form of consolidation, where multiple cases raising the same issue are being heard together (which is a venerable practice that courts accomplish in various ways); and (2) there doesn’t seem to be any issue with majorities of District Court judges attempting to take cases away from panels or for judges not assigned to the cases to weigh in through dissents from and concurrences in denials of en banc review. So while I can’t say I am a fan of District Court en banc, it also does not present the problems of Circuit Court of Appeals en banc. And it’s rare enough we need not worry about it.
Prof. Volokh also pointed out something that was implicit in my piece, but which I should have made explicit. The issue with en banc review is not ideological. As Prof. Volokh points out, the Ninth Circuit has repeatedly granted en banc review issued opinions reversing panels that recognized Second Amendment rights, essentially using en banc review for “error correction” purposes, because a majority of the judges of the circuit apparently disagree with panel decisions recognizing broader Second Amendment rights. While the posture of these cases is somewhat different (at least the Ninth Circuit is waiting for panel decisions to come down before hearing them en banc, and the Ninth Circuit has a unique “partial en banc” system where the en banc hearings are heard by the Chief Judge and 10 randomly selected circuit judges), these cases do have the look of attempts to circumvent the system for selecting three judge panels. There’s no reason why these cases should be heard en banc unless there is a specific conflict between two published Ninth Circuit panel decisions on an issue the Supreme Court has not weighed in on.
At any rate, I appreciate Prof. Volokh’s clarifications.