Divide and Conquer: How the Democrats Can Maintain Control of the Ninth Circuit

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Harvard Law & Policy Review Blog


Due to its large size, the Ninth Circuit employs a limited en banc review, where only eleven of its active judges sit en banc, consisting of the chief judge and ten other active judges who are randomly selected. Accordingly, limited en banc allows for “minority rule” in a subset of cases, such as when the random draw results in six or more judges holding minority views for that particular case. Although a few Ninth Circuit judges have criticized the limited en banc procedure because of the possibility of minority decisions, most of the judges on the Ninth Circuit have apparently accepted the limited en banc procedure on the basis that there is no perceived realistic alternative. This Essay challenges this consensus and presents a mechanism to fix the Ninth Circuit’s representativeness problem while retaining the efficiency of the current procedure. Because the Trump Administration has significantly cut into the advantage Democratic appointees have on the Ninth Circuit, this mechanism is needed for the Democratic appointees to maintain control of Ninth Circuit law.

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