En Banc Review Needs To Be Curtailed
The procedure is unnecessary except in rare situations anyway, and it defeats the purpose of randomly selecting judges and politicizes the courts
Edit: after reading this, please read my update here.
Yesterday, the full, “en banc” Sixth Circuit Court of Appeals, 16 active judges, split 8-8 on whether to hear a case challenging the Biden Administration’s workplace vaccine mandate. The decision consisted of an order and three separate opinions containing extensive discussions of the merits of the case. And this entire episode constituted a sad milestone in our march towards a politicized judiciary.
“En banc” is a term of art in the federal intermediate courts of appeals, the courts you appeal to before going to the US Supreme Court and after a case is heard by a District (i.e., trial) court. Normally, when you appeal a case to a circuit court of appeals, you are assigned to a random panel of three judges from the circuit, who decide your case. If you don’t like the ruling and it concerns a federal issue, you can then petition the Supreme Court for further review, though generally that Court will only take your case if the issue is seen as super-important or there is a conflict between different circuits or between a circuit and a state supreme court as to what the law is. So for most litigants, the three judge panel of the Court of Appeals is the last and only appeal of their case.
This has been the way the federal courts have operated for more than a century, and there were precursors that shared its essential features before that. It’s also the way many state courts operate as well.
However, because federal Court of Appeals decisions are often published and precedential, a problem arose that occasionally, two published decisions would contradict each other, leaving lawyers and district judges to guess as two which one properly stated the law. Accordingly, in 1948, Congress passed the en banc review statute, which allows a Court of Appeals, in that instance, to rehear the case with all judges in the Circuit participating. Even after the statute passed, en banc review was a very rare thing; for one thing, it required all the judges in a circuit to travel to a central location for the en banc hearing.
But en banc review has not stayed rare, and has, in fact, strayed far from its original purposes. Several things have happened. First, Circuit Courts of Appeal are reviewing “shadow docket” motions en banc. In other words, rather than a big en banc hearing in a rare case after the panel has spoken, a court will simply take up an issue en banc where there has been no final decision on the merits, reviewing whether someone is entitled to a preliminary injunction or a stay and overruling the “motions panel”, the 3 judge panel ordinarily assigned to deciding such things.
Second, the “initial en banc” is starting to gain traction. That’s where you go straight to en banc review and don’t even bother having a panel review the case at all, even a motions panel. Yesterday’s Sixth Circuit case was both a shadow docket motion and an application for initial en banc. The most notorious example of initial en banc involved the Eleventh Circuit Court of Appeals, which had a majority of conservative judges who wanted to ensure that Florida’s restrictions on felon voting were in place before an election. So, they granted “initial en banc”, took the case away from the panel (who presumably might have ruled against the state), and issued an order declaring the restrictions permissible before the election occurred. There’s no theory of jurisprudence where that comes off as anything other than a nakedly political act.
Third, there is the “dissent from denial of en banc review” and its close cousin, the “concurrence in denial of en banc review”. This happens when en banc review is denied (as happened yesterday): rather than just issuing an order saying en banc review is denied, the Court issues published dissents and concurrences. These are written by judges who were not assigned to the three judge panel, and who the Court just ruled could not hear the case (because en banc was not granted). And they contain extensive discussion of the merits of the case. Think about this: a judge not assigned to a case is writing an opinion about how the merits should come out. And when it’s a shadow docket case like yesterday, it’s even worse, because those opinions are being issued before the case is decided by a three judge panel. So basically, the judges who are not assigned the case are heard from before the judges deciding the case get to weigh in. That’s just horrible- obviously, it gives rise to charges that the en banc dissenters and concurrers are lobbying the panel assigned to the case.
None of this has anything to do with the purpose of en banc review. The purpose is narrow: to resolve the conflict between two published opinions from panels in the same circuit. None of these judges taking shadow docket cases, pushing for initial en banc review, or penning separate opinions relating to the denial of en banc review are applying that standard. They are just trying to get their word in and influence the hot new politically salient case.
And it’s all completely inconsistent with the notion of an “inferior court”. That’s the term Article III of the Constitution uses for all federal courts other than the US Supreme Court. They are inferior courts. And the way it has always worked is you are randomly assigned judges in those courts, with the option of taking it up to the Supreme Court eventually- that court speaks as one unit, with no panels.
The notion of a “full court” in the inferior courts is tenuous to begin with. Think about the District Courts. Let’s say you are assigned to Judge Jones to try your case. Do you care what Judge Smith, in the courtroom next door, thinks about your case? Really, you don’t. Because the District Courts speak through single judges, not as a unit. (The only exception to this might be when the Court creates rules for its own procedure. But those rules apply to all pending cases, not just to one case. The “full District Court” never speaks about a single pending case.)
It’s the same with the Court of Appeals. Courts of Appeals speak through three judge panels. The decision of three Ninth Circuit judges, or even a 2-1 majority of them, can be published and becomes a precedent that is binding on all District Courts within the Ninth Circuit. That’s how Courts of Appeals rule on cases. And then, losing litigants can seek Supreme Court review. That Court exists in part to correct the errors of the inferior courts (though it obviously exercises discretion as to whether to hear such cases). The full Court of Appeal isn’t a thing in most cases.
The en banc review process carves out a narrow exception to that, to solve the problem of conflicting published opinions within the Court of Appeal. It’s a tie-breaking mechanism. The problem is, Court of Appeal judges are no longer using it as just a tie-breaking mechanism. They are using it to intervene in sexy cases that they would like to participate in, even though they weren’t randomly selected to be on the panel. And they are doing it for political reasons- the entire reason the dissenters in the Sixth Circuit were so upset is because they want to strike down the Biden vaccine mandate and think that the case may have drawn a liberal panel that is willing to uphold it. That combination— the desire to participate in politically salient cases, and the desire to change their result— is a recipe for a completely politicized judiciary.
The system of random selection of judges is one of those “norms” you often hear about as the foundation of a democratic system of government. If the judges selected to hear a case are selected via a political process, then you will get political results, and just as important, you will create a public perception that the results are political. This is the damage that Eleventh Circuit initial en banc decision in the voting rights case did: it essentially sent the message to litigants that if you didn’t like the panel drawn in a politically salient cases, the judges not selected to the panel will swoop in and save the day for you, but only if they agree with your politics.
This situation screams out for reforms. Congress should amend the en banc statute and write the “conflict in published decisions within the circuit” rule into the statute, making clear that courts have no jurisdiction to act en banc except when such a conflict is shown. Initial en banc and shadow docket en banc should be banned entirely- every case should go to a panel first, and review should be conducted by the US Supreme Court, not the full Circuit Court of Appeals. Finally, the dissent and concurrence from denial of en banc review should be eliminated- the case reporters should only note if any judges dissented; there should be no separate opinions.
These reforms are necessary both to ensure litigants get a fair shot at a randomly selected Court of Appeals panel, and to ensure public confidence in the federal judiciary.
Well, you said it:
"That combination— the desire to participate in politically salient cases, and the desire to change their result— is a recipe for a completely politicized judiciary."
"The system of random selection of judges is one of those “norms” you often hear about as the foundation of a democratic system of government. If the judges selected to hear a case are selected via a political process, then you will get political results, and just as important, you will create a public perception that the results are political. "
So what do we do about it? The federal courts were stuffed with these people by an aggressive Republican Party in control of the Senate, particularly the supreme court, and we know it's completely politicized.
Faced with judicial integrity crises in the past in the UK, entire new court systems were set up to bypass and overrule the problem courts. I have read some of the convoluted history of this. Is this a path forward? It seems like it would require amending or abrogating the Constitution, but maybe not?
The UK has the advantage of an unwritten constitution; it could be changed simply through consensus (and has been, many times in the 19th century and even in recent years), though English judges do not state a new Constitutional principle until they are sure a supermajority of the public agrees. "Contrary to the British constitution" means "repellent to the fundamental fiber of British people" or something similar, using the *other* meaning of "constitution". (This is probably the way the 9th amendment ought to be approached here, as a side note.)
You make one good recommendation for reform. It doesn't go far enough. The public has no confidence in the federal judiciary and it's getting even less as time goes on and more and more nonsense and bullshit comes out in the form of "court rulings". Every time a nonsensical ruling comes out with thin, incoherent excuses for results-oriented judging, and there've been a lot lately, confidence declines.
Bush v Gore was of course a HUGE hit to the credibility of the federal judiciary; they backed off from such nonsense for a while, but they seem to have redoubled in spades most recently with the Texas SB8 situation (where they could have declared that judges and court officers were liable for accepting "bounty" cases, which has enough legal precedent; or declared that nobody can file suit without a cognizable interest, which has more legal precedent; both while ducking the question of abortion entirely -- but instead they let it go into effect in pure results-oriented judging); and with the insane ruling attacking the OSHA vaccine mandate (which made up a bunch of bullshit and contradicted everything about the OSHA act -- its so-called reasoning could be used to prohibit fire escape regulations); and the latest Texas lower federal court ruling attacking the federal mandate for its own employees (which made up a bunch of bullshit and contradicted pretty much all of employment law).
What can be done to get judges who *act like judges*? I mean, I know I don't have a judicial temperment, which is why *I have not tried to become a judge*, but neither do a bunch of the federal judges appointed by Trump, or Clarence "I don't recuse myself in cases where my wife is implicated" Thomas. Nobody should have confidence in the federal judiciary; it's Taney-level bad.
Only the removal of the unjudicial from the bench will restore confidence. It can't be done by impeachment because impeachment is broken and has never worked properly, not from day one: it's too hard to get 2/3 in the Senate for *anything*. What are the alternatives?
Here's a radical one: Congress could establish a Court of Judicial Qualifications to determine whether judges are currently engaging in "good behavior". If they are ruled not to be, obviously, they aren't judges any more; Constitution is clear on that!
En banc is also allowed for questions of exceptional importance (importance being in the eye of the voting judge majority/beholder). This piece ignores that separate basis for en banc review, which would justify the initial en banc procedure (at least in really important cases) and the decision to take any case en banc, regardless of whether there is a circuit law conflict or not. It would also justify en banc review simply for error correction, even without a split.
It's not a perfect process, but I don't see why a full circuit shouldn't (whenever it wants to) decide to address an important question via en banc procedure.
Maybe prudentially the "initial en banc" should be reserved for truly rare cases, but it doesn't seem to be abused (maybe the Trump judges will see fit to start using/abusing it more).
Also, leaving things to SCOTUS where there is an intra-circuit conflict (as suggested in the comment below) is not a practical solution. SCOTUS rarely grants cert and needs an extremely good reason to do so. Particularly in a circuit the size of the Ninth, there will be (and frankly, there already are) conflicting panel decisions on various points of law that are important to litigants and district courts, but not truly cert-worthy (particularly in the eyes of the current high court which is granting cert less and less and hearing many fewer cases than it used to). Given that conflicts can and do arise, why shouldn't circuits have a way to resolve the problem short of making litigants go to SCOTUS?