August 4, 2020 - Ninth Circuit Insights

Know Your En Banc Ninth: Who's On It?

En banc proceedings are a central feature of the Ninth Circuit, which regularly revisits its panel decisions. Ninth Circuit en bancs come with a special twist: the uncertainty of which judges will hear the case. Given the Court’s size—currently 29 active judges—having all eligible judges serve on the en banc panel would obviously be unwieldy. Though the Court’s general orders authorize a theoretical “super en banc,” the provision has never been invoked and remains the stuff of legends. Thus, for every en banc, the Court randomly draws 10 judges to join the Chief Judge on an 11-judge en banc panel. 

Are any judges particularly lucky or unlucky when it comes to being selected for en bancs? To answer that question, we looked at every en banc case the Ninth Circuit has heard since Judge Thomas assumed the role of Chief Judge in December 2014 and for which an opinion was published as of July 2020. (Here, we pause to thank Hanna Lauritzen, who conducted the critical research and analysis.)

That gave us a sample of 60 en banc cases, along with a total of 19 Ninth Circuit judges who were active throughout this period and available to sit on any one of these panels. Of these 19, Chief Judge Thomas of course led the way, hearing all 60 cases (as his role requires). Who was most likely to join him? 

Judges W. Fletcher and Callahan tied for the title of most frequent en banc panel draw. Both heard a remarkable 34 cases—serving on nearly 57% of the en banc panels in our sample. Nipping at their heels were Judges Watford and Berzon, who each sat on 31 en banc panels, followed by Judge McKeown, who served as an en banc panelist 29 times.

On the other end of the spectrum? Judge Wardlaw, who was drawn for only 15 en bancs—less than half as many as Judges Fletcher and Callahan, and only 25% of the cases she theoretically could have heard. As another point of comparison, Judge Silverman was selected to nearly as many en bancs with 11 total sittings, but he assumed senior status in October 2016—roughly a third of a way through our sample period. Like Judge Wardlaw, Judge Graber was also unlucky, sitting on a total of 16 of the 60 en banc cases in our sample. Judges Paez, Owens, and Murguia were the remaining judges active throughout this period with less than 20 en banc sittings, with each of them garnering 19.

Next week, we take a look at what the judges did once they were selected to en banc panels. Who was most like to join the majority, and who was most likely to dissent? Bonus points to any reader who can guess which of the judges mentioned above was in the majority for every single en banc case on which he or she sat.