August 11, 2020 - Ninth Circuit Insights

Know Your En Banc Ninth: Who Decides?

Last week, we began our look at the Ninth Circuit en bancs by examining which judges were most and least likely to be selected to en banc panels. This week, we address what these judges decide when selected: who tends to be in the majority, and who is often in dissent? Once again, to answer that question, we’ve examined the 60 en banc cases 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 (and once again, we pause to thank Hanna Lauritzen, who conducted the critical research and analysis).

Not every en banc decision generates a dissent: nearly half of the cases in our sample were decided unanimously (albeit often with concurring opinions). The Ninth Circuit en banc court has thus achieved unanimity at a roughly comparable rate to the Supreme Court, which in the last 12 years has always decided at least 36% of its cases without dissent, with some years approaching (or even exceeding) 50%.

En banc panels have spread the responsibility for authoring majority opinions broadly, with no judge having penned more than 4—a mark shared by Judges W. Fletcher, Hurwitz, Christen, and Murguia. As the member of this cohort who has sat on the fewest en banc panels (19), Judge Murguia also took the prize for highest percentage of en banc sittings in which she wrote for the court, at 21% (excluding Judges Fisher and Tashima, who each went 1 for 1). Judge Graber clocked in next at 19%, having authored 3 majority opinions during her 16 en banc sittings.

Who was most likely to join these majority opinions?  Judges McKeown racked up a remarkable record on that score, forming part of the majority for every en banc case on which she sat—a total of 29 cases.*  Other frequent members of the majority include Judge Nguyen (96%), Judges Christen, Gould, and Paez (all 95%), and Judge W. Fletcher (94%).

Dissenting opinions were not distributed in the same evenhanded manner as were the opinions for the court. Instead, one judge stood head and shoulders above the pack: Judge Ikuta, who authored a total of 9 dissents. The other most frequent dissent writers were Judges Callahan, Bea, and Kozinski, who authored 4 each.

Judge Ikuta was also the most likely judge to be in the dissent more generally, disagreeing with the majority in a total of 13 of the 26 en banc cases on which she was a panelist—a rate of 50%. Among judges who heard at least 15 en bancs, she was followed by Judges Bea and Callahan, who dissented at rates of 43% and 35%, respectively. Notably, Judge O’Scannlain—who took senior status at the end of 2016 and sat on only 11 en bancs in our sample—dissented at a similarly high rate of 45%.

En Banc Chart

Next week, we examine the composition of these divided en banc opinions more closely, with an eye toward examining which Ninth Circuit judges are most and least like-minded. This week’s quiz question: when both were seated on the same en banc panel, which judge was most likely to disagree with Judge Ikuta?

*Correction:  A previous version of this post stated that Judge Owens had joined the majority in all 19 of the en banc cases on which he sat.  In fact, Judge Owens joined 2 dissents.  The previous version of this post also understated the percentage of cases in which Judges Rawlinson and N.R. Smith dissented (by 5% and 6%, respectively).  We apologize for the errors.