August 25, 2020 - Ninth Circuit Insights

Know Your En Banc Ninth: The Dissents Stay Dissents

In the past two weeks, we’ve examined which judges tend to agree and disagree with one another when on the same en banc panel, and which of those judges tend to end up in dissent. This week, we look at whether the views of the dissenting judges may ultimately prevail in the end.

First: the composition of the Ninth Circuit has changed substantially over our sample period from 2014 to 2020, with President Trump appointing ten judges and other judges departing or taking senior status. One might think that the most frequent dissenters in our sample—Judges Ikuta, Callahan, and Bea—would find themselves in the majority more frequently in, say, 2019 than they did in 2015. Do the numbers bear that out?

The short answer is no—or at least, not in any way reflected in our data. To examine this issue, we looked at the proportion of cases in which either Judge Ikuta, Judge Bea, or Judge Callahan registered a dissent by the year in which those cases were submitted. As the below chart illustrates, the resulting picture looks far more like a random walk than the product of any discernible trend:

En Banc Chart

Thus, for example, whereas in 2015 these three judges dissented in only 3 of the 11 en banc cases submitted, in 2018 and 2019 they did so in a total of 9 of 15 cases.

Of course, these numbers come with an enormous caveat given the relatively small sample size. It’s also possible that a discernible trend will begin to emerge in the coming years, as a greater number of the newly appointed judges sit en banc. Indeed, of the judges appointed by President Trump, only Judge R. Nelson has sat on more than two en bancs in our sample (with four sittings). Judges Bennett and Bade each have 2 sittings, and every other recent appointee has either none or 1.

Second: what about the Supreme Court? The en banc Ninth Circuit does not, of course, necessarily have the last word. Has the Supreme Court consistently reversed the en banc Court, perhaps vindicating its frequent dissenters?

Again, the short answer is no. Indeed, it is notable how rarely the Supreme Court has granted cert. to review en banc Ninth Circuit decisions, given that these are cases the Ninth Circuit viewed as important enough to merit en banc review and as to which reasonable jurists could presumably disagree. In our sample of 60 cases, cert. petitions are pending or remain possible in 5. Of the remaining 55, the Supreme Court granted cert in just 2: United States v. Sanchez-Gomez (in which Judges Ikuta and Callahan, among others, dissented) and Rizo v. Yovino. The Supreme Court reversed in both, with the latter reversal focusing not on the merits, but the en banc Court’s decision to count Judge Reinhardt’s vote after he passed away.

The Supreme Court has let all of the remaining 53 decisions stand, meaning that it has granted review in only 3.7% of en banc Ninth Circuit decisions. To put that number in perspective: the Ninth Circuit issues roughly 500 published opinions every year, and the Supreme Court grants review of between 8 and 16 annually, which would be a rate of about 2.4%. So for litigants hoping to turn an en banc dissent into a Supreme Court grant, the odds might be slightly higher than for a published panel decision, but not by much.