[Bulldaddy]

I clerked for two federal circuit courts of appeal (sister courts of the Ninth). Any judge, on his or her on motion/request, can request that a 3-judge panel's ruling be reviewed "en banc" regardless of a lack of an affirmative motion by any of the parties. Judges have the inherent power to do so. There are still one or two of the judges among the Ninth Circuit who are solid constitutional adherents - not many, but at least a couple. One or more of them requested that the entire roster of judges be polled to see if it should be reviewed "en banc." In, I believe, every other Circuit Court of Appeals the entire roster of active judges (not those on senior status) receives briefing and sit together to hear oral argument (although I've seen several cases where the panel decision was so clearly eff-ed up that the panel decision was reversed after submission of only the briefs and time wasn't wasted on scheduling and hearing oral argument; that SHOULD happen here but probably won't for no other reason than some of the judges will want the publicity of a nationally broadcast oral argument and they can preen and posture with their stupid, obvious questions). Then the whole en banc panel decides the issues anew. However, because the Ninth Circuit is so large both in the number of active judges (about 25, I believe) and geography, an "en banc" review is usually just an "enhanced" panel of about 12-13 of those judges.

An en banc review, initiated by one of the active judges, at least means that someone with a shred of dignity and common sense - not to mention fidelity to her or his oath as a judge - looked at the panel's opinion and probably puked. I suspect that judge was embarrassed and doesn't want to be guilty by association with what his idiot colleagues did. Also, although it's hardly going to enhance the Ninth's reputation as an ends-oriented court, if they can get the panel opinion fixed (reversed) maybe they can restore a shred of dignity. Finally, as precedent for future cases - and all challenges to future EOs will originate in District Courts within the Ninth so that appeals will be heard by the whackos and looney-birds at the Ninth - at least one judge wants to try and get this right to discourage future appeals and litigation like this, especially on the standing issue.

Just my 2-cents. Hope this helps.

[Bulldaddy]

I forgot one other important point: if the request for an en banc review is denied, it will give the requesting judge or judges who weren't on the 3-judge panel of idiots to write a dissent from the denial, explaining why the request was made and why the panel decision needs full (or enhanced) court review. Those dissents will be very illuminating. It will give the "real" judges the chance to identify themselves and distance from this decision.

I don't know how many judges have to vote in favor of the request for en banc review. It's a matter of internal Ninth Circuit Rules of Procedure. I'm too lazy to look those rules up, but I'm sure they are available online. Usually 50% (not necessarily a majority, but at least 50%) must vote for en banc review. That vote will occur after the briefs are submitted on Thursday.

[saywhatagain]

Thank you for sharing. Helps for a better understanding

It appears the consensus regarding the argument made on behalf of President Trump was incomplete and weak. If true, I was curious why attorney preparation was so poor. Silly mistakes like that can not be made.

[goodnesswins]

Thanks for all the info!

[Ozark Tom]

In the case such that “a precedent for future cases - and all challenges to future EOs will originate in District Courts within the Ninth”, the former Ninth once broken into multiple districts, shall retain the states of Alaska, Idaho, Montana, and possibly Arizona. Every other state winds up in a newly numbered district. Enjoy those rulings from the slimmed down Ninth.