The Ninth Circuit Court of Appeals has once again decided against a full-court rehearing, marking the tenth instance in its history. This decision reaffirms the court’s longstanding pattern of rejecting the so-called “super en banc” review, despite what some perceive as substantial judicial errors by the limited en banc court (LEBC). Law professor Arthur Hellman has remarked on this tradition, highlighting the court’s reluctance to override the LEBC, even when a majority of judges express concerns about a decision’s accuracy. More details are covered here.
The Ninth Circuit’s approach reflects a broader judicial philosophy that valorizes the efficiency and stability of the limited en banc system. The limited en banc consists of 11 judges and is intended to correct errors without engaging the full roster of the court, which includes 29 active judges as of recent counts. This method seeks to balance the necessity of error correction with the practicalities of judicial administration.
Many legal scholars and practitioners are left pondering why the super en banc has yet to occur, especially as other circuits like the Fifth and Sixth have occasionally employed larger panels for particularly contentious cases. Some argue that the sheer size of the Ninth Circuit makes a full en banc review cumbersome and unwieldy. Others assert that the court’s preference is rooted in a desire to maintain cohesion and discourage torrents of en banc petitions that might otherwise flood the docket.
Historically, the Ninth Circuit has been a focal point of judicial innovation and restraint. According to the UCLA Law Review, the court’s preference for a limited en banc model stems from its caseload volume and geographic breadth, which covers nine states and two territories. This expansive jurisdiction necessitates a streamlined approach to appellate review.
The court’s decision not to employ the super en banc process is not without its critics. Some argue that it limits rigorous judicial oversight, potentially leaving significant rulings without the opportunity for the full spectrum of judicial review they might deserve. This is especially pertinent in cases with far-reaching implications, such as those addressing immigration, environmental regulations, and civil rights.
Ultimately, the Ninth Circuit’s adherence to tradition emphasizes a conservative judicial philosophy aimed at preventing disruption within the appellate system. Whether this approach will hold in future controversial cases remains to be seen, but for now, the limited en banc continues to serve as the primary mechanism for intra-court appellate review.