'The Law of the Circuit' Revisited: What Role for Majority Rule?

Abstract

In April 2017, the Fourth Circuit Court of Appeals announced that the full 15-judge court would convene to hear the challenge to President Trump’s executive order “to protect the Nation from terrorist activities by foreign nationals admitted to the United States.” This was a significant departure from the usual practice in the federal courts of appeals. Initial en banc hearing is extremely unusual, and rehearing en banc after a panel decision is almost as rare.

Ordinarily, two features define the ordinary course of adjudication in the federal courts of appeals. First, cases are heard and decided by panels of three judges selected at random from among a larger number of eligible judges. Second, decisions of those panels are binding on later panels unless overruled by the Supreme Court or by the court of appeals sitting en banc.

One consequence of these arrangements is that binding circuit law can be established by a panel whose views do not represent the views of a majority of the circuit’s active judges. Two prominent appellate judges have offered competing perspectives on the prospect of minority control of circuit law on an important issue. Former Chief Judge Douglas H. Ginsburg of the District of Columbia Circuit has endorsed the premise that “the majority should rule.” In contrast, the late Chief Judge James R. Browning of the Ninth Circuit championed an approach that he referred to as “panel autonomy.”

Taking these competing perspectives as its starting-point, this article examines the role of majority rule in the development and application of the law within the federal judicial circuits. The article considers two kinds of panel decisions that may prompt a judge’s call for en banc rehearing: those that are important as precedent and those that stand out because of their immediate practical consequences. The article argues that cases in the latter category are generally more appropriate for en banc review because the evolutionary processes of law over time can do nothing to mitigate the harmful consequences that will (in the majority’s view) flow from the panel decision. In particular, en banc rehearing can easily be justified when a panel decision interferes with the outcome of democratic processes or imposes substantial burdens on a major actor in the private sector.

Keywords: En Banc, Courts of Appeals, Appellate Practice, Precedent, Appellate Courts, Judges