Thread by @marinklevy

In the mood for a distraction? Yearning to learn more about en banc courts? Do I have the mini judicial administration thread for you…⚖️🧵🎃 (1 / 11-ish)

First, a word about terminology (c/o the incomparable Judge Jon O. Newman) – “en banc” can be traced back to the Latin “in banco” – the ablative of “bancus” or “bench.” JON notes that a well-regarded etymologist indefnties a use of in banco in English writing in 1645, and...(2)

...a first use of the Anglicized “in bank” in 1768 in Blackstone’s Commentaries. “In banc” apparently came into fashion in England in the 1800s. But, being the Francophile that I am, I prefer “en banc.” (3/11ish)

(The relevant statute, 28 U.S.C. § 46(c), uses “in banc,” but the relevant appellate rule, Fed. R. App. P. 35, uses “in banc” – so, you can do as you wish) (4/11ish)

Now, as we all well know, federal law provides that the courts of appeals will use panels of three judges to decide appeals and also provides that appeals may be decided by the full court (see, our trusty friend, 28 U.S.C. § 46(c)). (5 / 11ish)

That “full court” is made up of all of the active judges of the circuit. And / but a senior judge who was on the original panel whose case is being reviewed may also participate. (Once again, see, still our friend, 28 U.S.C. § 46(c).) (6 / 11ish)

Now, en bancs were not a “thing” in the early days of the federal courts of appeals because there were not enough judges on each court! (Remember, many of those courts began their lives with only two judges and relied on other Article IIIs to round out their trio!) 😲 (7 / 11ish)

The first court of appeals to go beyond 3 judges was the Second Circuit (❤️), which went from 3 to 4 judges in 1902. But the first challenge to the validity of a rehearing en banc was brought in the Third Circuit (shout out to @MatthewStiegler!). (8/11ish)

Luckily the the Supreme Court approved en banc rehearings in 1941 in a little case called Textile Mills Securities Corp. v. Commissioner (just rolls off the tongue, that one) and Congress authorized them in 1948. (Act of June 25, 1948, ch. 646, 80th Cong., 2d Sess. § 46(c))

Congress had to rethink the en banc 30 years later – when the 9th Circuit was expanded in 1978 from 13 to 23 judges, Congress authorized any circuit of more than 15 active judges to use a partial en banc court, with the size of the en banc panels to be chosen by the circuit (10)

The 9th Circuit is the only court to rely on this provision (though the 5th and 6th could too). The 9th earlier experimented with a limited en banc of 15, but that number proved too trixy, and it now has a limited en banc of 11 – the Chief Judge and 10 others. 9th Cir. R. 35-3.

(Though it is theoretically possible to have a full court en banc after a partial en banc panel decides a case in the Ninth Circuit. But can you imagine all 29 active judges together?! That would be 🍌!)

As I suggested last night, I think there are important questions about the optimal size of en banc courts (related to the optimal # of active judges on a court of appeals). More thoughts on these soon. For now, I hope you enjoyed your Judicial Fun Fact of the day! (13/11ish, fin)

Whoops! You should never try tweet storming and getting your kids into costumes at the same time. I meant to say that FRAP 35 uses “en banc.” My apologies!