August 18, 2020 - Ninth Circuit Insights

Know Your En Banc Ninth: Birds of a Feather

Last week, we continued our look at Ninth Circuit en bancs by examining which judges were most and least likely to dissent in the 60 en banc cases submitted and decided since December 2014.*  This week, we look at cases featuring three key judges—Chief Judge Thomas, Judge Ikuta, and Judge Callahan—to try to get a sense for which individual judges are most and least likely to agree in a given case.  For readers familiar with the Ninth Circuit’s judges, much of what follows can probably be filed away in the “Things you already knew but it’s nice to see numbers confirming” category.  But the numbers do paint an interesting picture.

We begin with Judge Ikuta, the en banc court’s most frequent dissenter.  Judge Ikuta sat on a total of 26 en banc panels, and 13 Ninth Circuit judges joined her on at least 9 of those panels.  Of these 13 judges, who was most likely to agree with Judge Ikuta (at least as to the result, if not necessarily the reasoning), and who was most likely to disagree? 

En Banc Chart

Two judges—Judges Callahan and Bea—emerge as the clear leaders in the agreement category, with Judge Callahan having joined Judge Ikuta in either the majority or dissent in 15 of 16 cases, and Judge Bea having done so in 8 of 9.  This is little surprise, as these judges are also the second and third most likely to dissent over our sample.

On the other end of the spectrum, and the answer to last week’s quiz question?  Chief Judge Thomas, who would have reached the same outcome as Judge Ikuta in only 9 of the 26 cases on which they sat together.  Judges W. Fletcher (6 out of 16) and McKeown (4 out of 11) also agreed with Judge Ikuta in less than 40% of their shared en banc cases.

What about Judge Ikuta’s most frequent joiner, Judge Callahan?  As one would expect, the overall pattern of agreement and disagreement is largely the same as for Judge Ikuta.  But because Judge Callahan has been selected for a high number of en bancs—34 over the course of our sample—looking at the rates of agreement with Judge Callahan provides a fuller picture of the Court, as an additional 9 judges meet our (somewhat arbitrary) threshold of 9 joint sittings. 

En Banc Chart

Two of those now-included Judges—Judges Tallman and N.R. Smith—actually agreed with Judge Callahan in every case on which they sat with her, with Judge Tallman doing so in 12 cases and Judge N.R. Smith in 10.   Another now-included judge—Judge Paez—has the lowest rate of agreement, joining Judge Callahan in just 4 out of 12 cases.

Finally, we look at the Court from the perspective of Chief Judge Thomas, who frequently disagreed with Judges Ikuta and Callahan.  He provides the broadest possible sample, having sat on all 60 cases and with a total of 27 judges meeting our 9-case threshold. 

En Banc Chart

Chief Judge Thomas’s most frequent joiner?  Judge W. Fletcher (in 34 out of 35 cases) and Judge Berzon (in 30 out of 31 cases).  On the other side, we again find Judges Ikuta, Bea, and Callahan.  This time, they are joined by Chief Judge Thomas’s predecessor as Chief, Judge Kozinski—who agreed with his successor on the outcome of just 6 out of 15 cases—and Judge O’Scannlain—who went 5 for 11.

Next week, we examine the extent to which any of these en banc dissents have or may in the future become the governing law.  Our quiz question:  in how many of these 60 en banc cases has the Supreme Court granted cert and reversed?

*Please note that we’ve updated last week’s post to an address an error:  while we previously stated that both Judges McKeown and Owens joined the majority in every en banc case on which they sat, in fact only Judge McKeown did so.