Judges

Are There Too Many Dissents from Denial of En Banc Petitions?

A federal judge suggests that dissents from en banc denial make the courts seem too political. Others might think such dissents serve a useful purpose, including the flagging of important questions (and significant errors) for Supreme Court review.

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Yesterday, the U.S. Court of Appeals for the Fourth Circuit denied a petition for rehearing en banc in Doe v. Fairfax County School Board by a vote of 9-6. At issue in Doe was when school districts may be held liable for sexual assaults that occur at school. A jury rejected Jane Doe's title IX suit against the Fairfax County School Board, on the grounds that the school did not have sufficient knowledge of the assault to be held liable, and the trial judge rejected Doe's motion for a new trial. On appeal, a divided panel reversed the district court, concluding that the trial court had applied the wrong legal standard. Reuters reports on the story here.

Two judges—Wilkinson and Niemeyer—dissented from the petition denial. Judge Wynn (who authored the original panel opinion) concurred in the denial, both to defend his opinion and to comment on the practice of issuing from dissents from denial of en banc decisions. This part of Judge Wynn's opinion is particularly interesting.

Here is the relevant portion of Judge Wynn's opinion.

Because this Court denies the petition for rehearing en banc, this matter is decided by the opinions produced by the three-judge panel that fully considered the issues after oral argument. Yet now, we confront two advisory opinions that purport to dissent from the denial of the petition to rehear this matter en banc. But those opinions provide next to no explanation for why our colleagues are dissenting from the denial of rehearing en banc, a procedural question falling under Federal Rule of Appellate Procedure 35(a). Instead, both opinions focus entirely on the underlying merits, and thus are no more than advisory opinions that read like editorials or legal commentary on the three-judge panel decision.

This is not a new practice, though until recently, it was uncommon in our circuit. See Cannon v. Kroger Co., 837 F.2d 660, 660 (4th Cir. 1988) (Murnaghan, J., dissenting from the denial of rehearing en banc) (noting that, as of the late 1980s, this practice was "unusual, if not extraordinary" in the Fourth Circuit). For decades in other circuits, both panel and non-panel members have issued merits opinions dissenting from the denial of rehearing en banc. E.g., Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Plan. Agency, 228 F.3d 998, 999 (9th Cir. 2000) (Kozinski, J., dissenting from the denial of rehearing en banc in a case where he did not sit on the panel). "Since the first [dissent from a denial of rehearing en banc] in 1943, appellate judges have employed them with increasing regularity," and the practice particularly picked up steam after the turn of the century. Jeremy D. Horowitz, Not Taking "No" for an Answer: An Empirical Assessment of Dissents from Denial of Rehearing En Banc, 102 Geo. L.J. 59, 60 (2013). The vast majority of these dissents are written by judges other than the panel dissenter. Id. at 74.

To be sure, the proliferation of dissents from the denial of rehearing en banc has "sparked heated debate among academics and judges alike." Id. at 61. Some have justified this practice by noting that "there has been some indication from members of the Supreme Court that they find [such] dissents useful in deciding whether to take cases on certiorari," and that the dissents "inform the Supreme Court of the importance of an issue and of arguments favoring one side or the other that have not theretofore appeared in print." Marsha S. Berzon, Introduction, 41 Golden Gate U. L. Rev. 287, 293 (2011); see also Indraneel Sur, How Far Do Voices Carry: Dissents from Denial of Rehearing En Banc, 2006 Wis. L. Rev. 1315, 1353 (2006) ("A crisp rehearing dissent may help a losing party at the panel level write an analytically powerful petition for certiorari. That may be why the Solicitor General of the United States and private litigants quote from rehearing dissents when petitioning or fending off arguments in opposition to a petition." (footnotes omitted)). "[C]ircuit judges elsewhere in the nation also take heed of rehearing dissents in various degrees," and there are even "instances of congressional reports citing" them. Sur, supra, at 1354, 1356.

But these dissents also come with serious drawbacks. They have been characterized as reading, "inappropriately, like petitions for writs of certiorari," providing one judge's blueprint for how the favored party ought to frame the case before the Supreme Court. Berzon, supra, at 294. Some have observed that these advisory opinions involve circuit judges engaging in "advocacy for further review [that] is inappropriate" and comes at the cost of not "upholding [the Court's] decision-making processes once they are completed." Id.; see also Indep. Ins. Agents of Am., Inc. v. Clarke, 965 F.2d 1077, 1080 (D.C. Cir. 1992) (Randolph, J., separate opinion) (arguing that it is "inappropriate" for judges to use dissents from denials of rehearing en banc to "step[ ] out of the robe and into the role of an advocate" and that these dissents "rub[ ] against the grain of Article III's ban on advisory opinions"); Michael E. Solimine, Due Process and En Banc Decisionmaking, 48 Ariz. L. Rev. 325, 328 (2006) (quoting Judge J. Clifford Wallace as stating that he does not read dissents from denials of en banc review because "[t]hey express a dissent from a non-opinion of the court" and are akin to "editorials after the court has ruled"); cf. Berzon, supra, at 294 (noting that some have argued that dissents from denials of rehearing en banc waste judicial resources on nonprecedential opinions falling outside the traditional three-judge-panel-or-en-banc-review dichotomy). To the extent some "members of the Supreme Court" have indicated "they find the[se] dissents useful in deciding whether to take cases on certiorari," Berzon, supra, at 293, this appears to extend an invitation for individual judges to freely submit advisory opinions to the Supreme Court.

There is also a belief that such dissents may harm the public image of the judiciary. Some commentators suggest that these opinions can create an "overblown appearance of internal dissension and disarray," id. at 294, while also "heighten[ing] the degree to which politics overtly governs judicial activity" by "imply[ing] an ideological preference so strong that it compels a judge to interpose herself in a dispute in which she has not been called to participate," Horowitz, supra, at 85–86; see also id. at 83 (noting that "[t]he Supreme Court grants review in cases with [dissents from denial of rehearing en banc] by Republican affiliates roughly 35% of the time, compared to a Democratic affiliate success rate of only 17%").

In particular, there has been criticism that a dissent by a non-panel member that addresses the merits may signal to the public disrespect for the hard work of the panel and for the full court's decision not to take a case en banc, even though en banc review "is not favored" by Rule 35(a). See Horowitz, supra, at 68 ("Readers of the Federal Reporter are left with the impression of … an opinion entitled to less deference than that which would ordinarily be accorded to circuit precedent."). And "[w]hen the rehearing dissenter was not on the panel, … the judge has not ordinarily read the entire record, participated in oral argument, or discussed the case in conference with other judges." Sur, supra, at 1344–45. This may "call into question the value of the judicial process as a whole" because "[i]f a judge who did not read the parties' briefs or hear their oral arguments nevertheless feels free to give her opinion on the merits of the case … [,] one might reasonably wonder whether the judicial system places too much emphasis on briefing and oral argument." Horowitz, supra, at 87.

Whatever the value or cost of these advisory opinions, as a Court, we ought to acknowledge and be transparent about what this practice entails. In our circuit, any active judge may call for an en banc poll, "with or without a petition" filed by a party. 4th Cir. R. 35(b). That means that this practice permits non-panel members to issue advisory opinions on any point of disagreement they have with the merits of any opinion issued by any panel, simply by calling for a poll and, if it is denied, appending a dissent.

Rule 35, as presently written, does not explicitly describe such a process. But given that our circuit has begun to embrace this practice, I believe we should modify Rule 35 to make explicit that individual judges may submit advisory opinions attached to the denial of rehearing en banc. And in doing so, the rule should reflect that these types of opinions neither supplement the panel decisional opinions nor "constitute the law of the circuit." Horowitz, supra, at 92.

Having expressed these considerations in the interest of the transparency that is so vital to our role as judges and of providing some notice of the real purpose of these types of opinions, I acknowledge again that this practice appears to have secured a foothold in our circuit. Accordingly, I offer the following equally advisory opinion to respond to the two advisory opinions in dissent of this court's decision to deny rehearing en banc.

Judge Wynn characterizes his concern as one of transparency, but It seems there are additional concerns at work, including the effect of such dissents on the likelihood of eventual reversal. As Judge Wynn notes, dissents from en banc denial from more conservative justices lead to Supreme Court grants of certiorari more often than dissents from denial by liberal judges. Io not doubt this finding, as it's altogether unsurprising. Of course a right-leaning Supreme Court reviews and reverses left-leaning judicial decisions more often, as those decisions are more likely to be out of step with prevailing doctrine. Insofar as dissents from denial of en banc review further this process, the effect is a salutary one.

Not every erroneous decision is en banc worthy, let alone worthy of Supreme Court review, and not every en banc denial prompts a dissent. When such dissents do issue, however, this provides useful information, particularly to the Supreme Court. It indicates, among other things, that the issues involved are of greater import and significance than in the usual case, and are thus worthy of greater consideration.

It is also an open secret that en banc dissents from some judges count more than others. This too is no surprise, as Supreme Court justices understandably trust the judgement and insight of some of their circuit court colleagues than others. Then-Judge Kavanaugh, in particular, is a good example, as his dissents from en banc denial often prompted High Court review.

I get that judges do not like to be criticized, and they like even less to be overruled. And if a judge's overall judicial philosophy is out-of-step with that of the Supreme Court, such reversals may be more common. Yet if such reversals are a problem, it seems the better course would be for circuit courts to decide cases in accord with prevailing legal principles than to complain about dissents from denial of en banc review.

UPDATE: Howard Bashman comments:

It is interesting to note that the places where such dissents seem to have proliferated — the Fourth and the Ninth Circuits — are the two federal appellate courts that are regarded as the most liberal, and thus the most likely to be out of step with the jurisprudence of the U.S. Supreme Court.

Perhaps in an alternate world where a truly liberal U.S. Supreme Court existed, we would see an increase in dissentals from those circuits dominated by conservative judges.

With his comments in mind, I'd suggest keeping an eye on the D.C. Circuit as well.

NEXT: Will Chief Justice Burger's Official Biography Ever Arrive?

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  1. The courts ARE too political. The dissents merely expose that.

    1. Ginsburg’s dissents came across as “based on my political beliefs, this is how the law should read”

      See Encinio Motors, goodyear v ledbetter, her dissent in ACA which became the plurality opinion after roberts flip. ( the first 4-5 pages were her stating that she liked the new policy therefore it was constitutional)

      1. Yep. When was the last time any Progressive judge (they sure aren’t liberals) wrote an opinion that was admittedly correct on the law but directly contrary to their well-known ideology?

        1. Never. And that exposes the lie that “both sides do it.”

  2. “no more than advisory opinions that read like editorials or legal commentary on the three-judge panel decision.” Isn’t that literally every dissent ever?

    1. Bingo.

      Yet now, we confront two advisory opinions that purport to dissent from the denial of the petition to rehear this matter en banc. But those opinions provide next to no explanation for why our colleagues are dissenting from the denial of rehearing en banc, a procedural question falling under Federal Rule of Appellate Procedure 35(a). Instead, both opinions focus entirely on the underlying merits, and thus are no more than advisory opinions that read like editorials or legal commentary on the three-judge panel decision.

      As tkamenick says, that’s exactly what the dissent does in any panel decision.

      If the decision will be heard en banc, then that’s what the en banc panel will be doing, deciding the case on its merits.

      So if the 3 judge panel blows it on the merits, then it’s entirely appropriate to re-hear it en banc and overturn.

      And any rule that says differently is wrong.

      There is also a belief that such dissents may harm the public image of the judiciary.

      There is also a belief that such dissents will allow the public to discover how dishonest many of our judges are.
      FIFY

      Some commentators suggest that these opinions can create an “overblown appearance of internal dissension and disarray,” id. at 294, while also “heighten[ing] the degree to which politics overtly governs judicial activity” by “imply[ing] an ideological preference so strong that it compels a judge

      To rule based on the “Living Constitution” (IOW, his or her own personal political desires) rather than on the written law and written US Constitution.
      FIFY

      Hey judge, there’s an easy fix for this: stop ruling based on your personal political beliefs, rather than on the actual written laws and Constitution as they were understand at the time they were adopted.

      “But society’s evolved since then!”
      Actually, the way we know that “society’s evolved” is that society elects legislators who will change the law, and executives who will sign the new laws.

      Anything else is black robed thugs with delusions of grandeur violating their oaths of office.

  3. “We need to keep this strictly in the family, capiche?”

  4. Judge Wynn’s statement in the opinion – “But these dissents also come with serious drawbacks. They have been characterized as reading, “inappropriately, like petitions for writs of certiorari,” providing one judge’s blueprint for how the favored party ought to frame the case before the Supreme Court. Berzon, supra, at 294″

    Hmm!
    Judge José Cabranes dissent from denial in Ricci v deStefano

    1. If the dissent doesn’t serve some purpose of that nature, I’m puzzled what the point of actually writing it down would be. You’d just say, “I disagree.” and leave it at that.

      1. “like petitions for writs of certiorari”

        Yeah, feature, not bug.

        The Supremes are more likely to believe a judge on the desirability of taking a case, as opposed to a mere lawyer representing a client.

        Shouldn’t the Supreme Court justices know which cases *some* lower-court judges want to be settled by the high tribunal?*

        *Insofar as the Supreme Court *can* settle a question – they certainly come closer to it than a circuit court.

  5. I would say that instead of too many dissents from denial there aren’t enough grants.

  6. It is no secret that liberal appellate panels try to “slip one past” the system whenever they think they can get away with. I forget the judge who said it, but something like “the Supreme Court can’t catch them all…” is the attitude most leftists have when it comes to legal decision making.

    And now that Trump had 4 years of appointments the circuit courts are more balanced, some tilting to the right when sitting en banc. That is going to add another layer of “inconvenience” for those on the left who are going to try to sneak panel decisions into case law.

  7. “There is also a belief that such dissents may harm the public image of the judiciary.”

    The public image of the judiciary cannot get any lower unless congress is disbanded and all “news” media is banned.
    Even used car salesmen get more respect.

    1. I wouldn’t go that far, I think judges get more respect than Congress.

      But in any case, preserving the public image of the courts isn’t part of the judicial oath/affirmation of office:

      “Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: ‘I, ___ ___, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the United States. So help me God.'”

      https://www.law.cornell.edu/uscode/text/28/453

      If anything, fulfilling this oath/affirmation might make judges *less* popular, not more. Eg, defending the rights of a poor criminal defendant.

      1. Substantially more, but still not a lot.

        The leader is small business (70%), followed by the military (69%) science (64%) and police. (51%)

        News on the internet and television news are tied at 16%.

        Congress is the loser, at 12%, but, hey, they did somehow climb out of the single digits they were at during the 2nd Obama term.

  8. Anybody know (the official reason) why appellate courts are set up with these panels?

    I know they’re authorized by the Judiciary Act, but don’t know why we want/need them.

    1. Do you mean the three judge panel system or the en banc system?

    2. I assume it goes back to the Judiciary Act of 1789, in which circuit courts consisted of two supreme court justices and a district judge, but I’d be happy to be corrected by a better-informed party.

  9. Most dissents are not needed. You lost.

  10. This is judges’ egos getting in the way.

    Where I practice, the Appellate Division in New York, decisions on the motion calendar (what is called around here the “shadow docket”) just say “granted” or “denied”. No reasoning given, nothing about what the vote was, or whether there was a dissent. They don’t want to create a body of case law on motions, which is the wise course.

  11. “Yet if such reversals are a problem, it seems the better course would be for circuit courts to decide cases in accord with prevailing legal principles than to complain about dissents from denial of en banc review.”

    To paraphrase Michael Bolton: Why should they change? SCOTUS is the one who sucks.

    1. >To paraphrase Michael Bolton: Why should they change? SCOTUS is the one who sucks.

      I love that you don’t think this needs context. And I hope that’s true.

    2. Because they’re violating the Constitution, and the times that “SCOTUS sucks” (to you) are the times when SCOTUS is correctly doing its job

    3. So, LTG, since you missed this in DACAfraude, I’ll ask again:

      Reality check:

      If you love something, if you have empathy for people, it changes your actions.

      So, LTG, What are the policies you abandoned, and what are the policies you’ve adopted, because of your “empathy” for lower class Americans?

      What are the policies you abandoned, and what are the policies you’ve adopted, because of your “love” for America?

      Because if you can’t answer that, your “empathy” and “love” are meaningless.

      Starting point:
      One of the bullshit go-to lines for free traders is that “you’re a worker 8 hours a day, but a consumer 24 hours a day.

      This is garbage, and anyone not lying to themselves knows it.

      We Americans define ourselves by what we do. “I am a Lawyer.” “I am a Doctor.” “I am a Welder.”

      “I am a failure as a human being, because I can not support my family based on my own work, and must rely on charity instead.”

      What are the policies that you promote to make that last one less likely?

      And no, “I support raising the minimum wage” doesn’t cut it. the minimum wage is where you enter the job pool. It’s not where you stay, if you’re a functional worker.

      One of the points of a higher minimum wage is to make it hard for people to get that starter job, so that there are more failures around to be “cared for” by the social worker footsolders of teh Democrat Party.

      “I support keeping out illegal aliens, and cutting down the amount of low skilled legal immigration, so that people without college degrees have a job market where the employers have to compete for workers, rather than the workers have to compete for any possible job, no matter how crappy”

      That would be showing empathy. But you’re against that

  12. IANAL, but it’s weird to me that there are dissents written by judges who weren’t part of the discussion. That never occurred to me. I suppose that’s an artifact of “en banc” being a subset of the circuit judges.

    1. They can read the opinion and dissent in the case.

      They can see any of the evidence they wish to see.

      They have to vote on whether or not to re-hear the case en banc.

      Assuming they’re approaching their job in a reasonable manner, they’ve put some effort into understanding the case before they’ve voted on whether or not to re-hear it.

      If they come to the decision “the panel applied the law wrong”, or “our relevant precedents are wrong, and we should hear this case so we can overturn those precedents”, why shouldn’t they write that up?

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