The Volokh Conspiracy
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Last week, a divided panel of the U.S. Court of Appeals for the Ninth Circuit ruled that the plaintiffs in Juliana v. United States, the so-called "Kids Climate" case, lacked standing. Almost immediately, counsel announced that the plaintiffs would seek en banc review of the decision.
In an addendum to my prior post on this case, I argued that seeking en banc review is a tactical mistake. As I explained, should the plaintiffs prevail in front of an en banc court, this would likely send the case to the Supreme Court and a broader loss for the plaintiffs—a loss that could have significant repercussions for other climate change lawsuits in the courts.
Upon reflection, I may have been too critical of the plaintiffs' tactical decision. Under the Ninth Circuit's rules, en banc will only be granted if a majority of those judges in active service vote for such review. Given the current composition of the Ninth Circuit, obtaining a majority in support of en banc reconsideration would seem to be quite a heavy lift.
As of the time of this writing, there are 29 judges in active service on the Ninth Circuit. If one were to assume that the court would split along ideological lines on an en banc petition, the plaintiffs' odds would seem pretty good, as 16 of the 29 judges were nominated by Democratic Presidents. Yet we should not expect such a split in this case for two reasons.
First, and most importantly, the plaintiffs' arguments are sufficiently aggressive and outlandish that they may not even command majority support among Democratic nominees, let alone the whole court. Indeed, both judges in the panel majority were Obama nominees, and they both voted against the plaintiffs. Second, en banc review is generally disfavored. Most judges require something more than "the panel got it wrong" to justify en banc rehearing, and few are likely to vote in favor of a petition that asks the court to stretch the bounds of existing precedent. En banc rehearings are generally reserved for instances in which there's a need to reconsider or clairfy prior circuit precedent, not pick a fight with prior Supreme Court decisions.
All this means that the plaintiffs are not risking too much by seeking en banc review. The petition is very unlikely to be granted, but there is an opportunity that the petition will provoke additional opinions endorsing the need for action on climate change, which may help the plaintiffs build additional support for their cause.
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