Our post a few weeks ago discussed the subject matters more likely to attract en banc review, and this post will talk about the effect of panel composition on en banc review. The chief reason to worry about who is on your panel is because they will be deciding your case. The federal courts of appeals courts face unfortunate, but likely inevitable, correlations between case outcomes and political party affiliation. But does the political affiliation of panel members also affect the en banc process in the Sixth Circuit?

Of course it does. Republican-appointed judges have been a majority on the Sixth Circuit for many years, so we looked to see if the en banc court accepts more appeals from panels with a majority of Democrat-appointed judges. We found that even though about 70% of cases have panels with a majority of Republican-appointed judges, a nearly 70% of the cases taken by the en banc court have been from panels with a majority of Democrat-appointed judges. Most of the en banc cases taken to overrule a decision from a Democratic panel involved a dissent by a Republican-appointed judge. Dissents also played an important, though smaller, role in triggering en banc review from Republican-majority panels. 

Given the Republican majority, and the political nature of the cases the Circuit takes en banc, it should be no surprise that, with a handful of exceptions, the vast majority of en banc decision by the Sixth Circuit in the last ten years have a stark divide between Republican-appointed judges supporting the court’s decision and Democrat-appointed judges signed on to the dissent. That said, five of the en banc dissents were truly bipartisan, and Judge Gibbons dissented eight times from her like-party colleagues. In addition, the Circuit also accepted en banc review of decisions by some judges more than others. Judge Moore stands out here, consistent with her position as the Circuit’s dissenter-in-chief. She was on the original panel in nineteen cases, which is about half of the total cases the en banc court accepted over the last ten years. The next most reversed judge, Judge Clay, was on the original panel in a quarter of the cases (nine), and Judge Stranch was next (six). Also worth noting is Judge Readler’s distinction as being the only judge to file a solo dissent from an otherwise-unanimous en banc court—last year’s decision in NRSC v. FEC, which is now before the Supreme Court. 

Only two en banc decisions in the last ten years were unanimous, both sentencing cases, United States v. Havis and Williams v. United States. By contrast, over 40% of the Supreme Court’s decisions were unanimous over the same time frame. That’s not to say the Sixth Circuit is more political than the Supreme Court. Most lawyers would agree the federal appellate courts (even the Ninth and Fifth circuits) are far less overtly-political than the Supreme Court in their day-to-day decisions. But the judges of the Sixth Circuit — and possibly those of the other circuits — are arguably more political in their use of en banc review than is the Supreme Court in choosing its own cases.

Litigants should look carefully at the current political makeup of the en banc court, and the judges on their panel, when deciding whether to pursue en banc review. Your chances of getting en banc review are the highest if you have a hot culture-war issue decided by a Democrat-appointed majority over a dissent by a Republican-appointed judge.