June 5, 2012
By Jacob Combs
Today, of course, we’re all looking forward to the Ninth Circuit’s ruling (which we expect to be released on the court’s website around 10:00 a.m. Pacific) regarding whether or not the Prop 8 case will be reheard en banc by an 11-judge panel of the appeals court. Because of this focus on appellate court process today, I thought I’d take a little time to go into more detail about what the en banc process entails and what it could mean for another important marriage equality case that made news last week: the striking down of DOMA by the First Circuit Court of Appeals.
Veteran readers of Prop8TrialTracker.com and followers of the Prop 8 trial might easily think, “wait, hasn’t the Ninth Circuit already ruled on the constitutionality of Prop 8?” The answer is yes, the Ninth Circuit did issue a ruling this February that uphold the lower court’s decision that Prop 8 is unconstitutional, but that wasn’t the last stop for the case even within the Ninth Circuit itself.
In the simplest and broadest sense, there are three levels that make up the federal courts in the United States. The first and lowest level is made up of the district courts, which are apportioned by state. In California, which is the largest state in the union, there are several district courts. Judge Vaughn Walker heard the Prop 8 case in its first form in the Northern District Court of California. While district courts only have the first say on any given issue, they are extremely important, because they are the only levels where witnesses are brought into court to testify, as several did during the Prop 8 trial. The highest court in the United States is, of course, the Supreme Court, which has the final say on any case it takes up. The Supreme Court takes cases by discretion; that is, they choose what to hear and what not to hear.
In between lie the appellate courts, and it’s there that things get a little bit complicated. The country is divided up into 13 Courts of Appeal, with California falling under the Ninth Circuit, which is the largest in the U.S. Any case that has been decided by a trial court has an automatic right to appeal, although, as we all know, these appeals often take a lot of time.
Smaller appellate courts often have a handful of judges on staff, like the First Circuit, which has five active judges. The Ninth Circuit, on the other end of the spectrum, has 29 active judgeships. Because of the enormous number of cases that come to the appellate courts throughout the year, appeals are assigned to 3-judge panels, chosen at random, who consider the ruling of the lower district court and either uphold it or reverse it. Sometimes, the appeals courts remand the case, sending it back to the district court. This first 3-judge step is the guaranteed appeal that all cases are entitled to.
After a 3-judge panel has ruled, the lower side can either appeal to the U.S. Supreme Court, or they can choose to seek an en banc rehearing, in which all of the active judges in a specific circuit rehear the appeal. The earlier 3-judge panel ruling is vacated, and the case is considered anew. These en banc appeals are not guaranteed, and are rarely granted, due to the inherent complexity of having a large number of judges hear a case together in one location.
Because of its size, the Ninth Circuit has its own en banc procedures: since it is impractical to have 29 judges hear one case, en banc panels in the Ninth Circuit have 11 judges on them, with 10 chosen at random and the Chief Judge, Alex Kozinski, joining them. Intriguingly, this means that en banc decisions in the Ninth Circuit do not necessarily reflect the majority opinion of the entire court. For this reason, en banc rehearings in the Ninth Circuit are unlikely to be granted. Nevertheless, today’s announcement will tell us whether a new 11-judge panel will rehear the merits of Judge Walker’s district court decision (essentially making it as though the earlier 3-judge decision never occured), or whether that earlier decision stands and we move straight on to the Supreme Court, which could easily decline to hear the case.
What does all this mean, then, for the DOMA ruling recently handed down by the First Circuit? Because that ruling was unanimous and signed by all three judges, it is in essence en banc-proof, since there are only five judges total in the circuit. (Technically, the First Circuit is a 6-person court, but there is currently one vacant seat.) This means that it is highly unlikely a majority would vote to rehear the case.
Intriguingly, though, an eventual First Circuit decision on the DOMA case could end up being heard by only eight judges, since there is a chance that Justice Elena Kagan could recuse herself given her likely past involvement as Solicitor General in deciding the Justice Department’s position towards previous DOMA cases. In the event of a 4-4 split on the Supreme Court, the First Circuit ruling would stand, meaning that DOMA would be unconstitutional, but not by virtue of a sweeping majority decision by the Supreme Court decision saying so. Technically, the decision would be limited to the First Circuit only, although such a ruling would have an effect on DOMA cases in the other circuits as well.
With DOMA certainly on its way to the Supreme Court, we will find out later today whether Prop 8 will join it very soon. On the other hand, we could be looking at a good deal more waiting time in the Ninth Circuit before Prop 8 makes its way onto the Supremes’ desks