A closer look at the Third Circuit’s recent en banc cases

Can a middle-school student be punished for wearing an “I ♥ boobies” bracelet to school? Can a defendant be prosecuted using evidence from a GPS tracker that police hid on his car without a warrant? Can police take DNA samples from everyone they arrest? These are among the questions that have led the Third Circuit in recent years to rehear cases en banc.

Since Chief Judge McKee became chief in 2010, the Third Circuit has issued 18 en banc rulings (they’re all listed at the bottom of this post). Looking at the court as a whole, a couple things jump out at me:

    • 18 cases in about 5 years isn’t many;
    • Of the 18 cases, 6 are criminal, 4 education (3 student speech, 1 due process), 2 immigration, 2 bankruptcy (both asbestos-related), 1 habeas, 1 class action, and 2 other civil cases. I expected more civil cases;
    • 5 of the 18 rulings were unanimous;
    • In at least 5, the court’s decision to go en banc was sua sponte. In at least 6, en banc rehearing was granted before the panel ruled; and
    • Of the 6 criminal cases, the government won 5.

Interesting, right? But I wanted to see how much these 18 cases can tell us about the ideology of the court and its judges. En banc cases are an especially useful lens because (most) every active judge votes in every case, so we can compare votes much more directly than we can in panel cases. Can votes in 18 cases tell us anything meaningful about the court or the judges? I’m not sure. But I’ve crunched some numbers so you can decide for yourself what, if anything, it all means.

Here’s what I did. For each case, I classified one side–majority or dissent–as liberal, one as conservative. In my scoring, liberals side with criminal defendants, students, consumers, etc.; conservatives side with prosecutors, corporations, etc. (I omitted a unanimous bankruptcy case, Grossman’s, that I couldn’t classify). Then I tallied the votes to find each judge’s percentage of liberal votes.

But some of the cases seemed more telling ideologically than others. So also I picked out 6 cases from the 17 that presented the clearest ideological divide–cases where it was clearest to me that liberals and conservatives would favor different outcomes –and ran the numbers for those cases separately.

The results? With apologies to my smartphone readers, here is a table with how the judges voted in the 17 cases:

En banc table graphic

Liberal votes in blue, conservative in red. (Gray means the judge dissented in part, black means the judge wasn’t on the court yet, white means the judge did not sit, presumably due to recusal). The names of the 6 more ideological cases are bolded. Again, links to all these cases are at the bottom of this post.

Overall, the liberal side won 10 times and the conservative side won 7 times.

Now let’s interpret. Here is how I’d characterize the voting records in ideological terms — judges with similar voting records are listed on the same line, from liberal on the left to conservative on the right:

More liberal


Smith / Fuentes

 Greenaway / Ambro

Rendell / Vanaskie / Jordan

Chagares / Fisher / Hardiman

More conservative

So, for example, the McKee-era en banc votes of Smith and Fuentes are more conservative than McKee and more liberal than Greenaway and Ambro, with Smith’s votes slightly more liberal than Fuentes’s.

Note that I’ve omitted Sloviter, Scirica, Barry, and Shwartz from this analysis. All were active for only part of this period, so their sample sizes were smaller. For what it’s worth, Sloviter’s profile was close to McKee, while Shwartz and Scirica were both close to Ambro.)

So–again, looking purely at votes in this body of cases–I’d describe the Third Circuit’s judges as 1 liberal (McKee), 4 moderates (Smith, Fuentes, Greenaway, Ambro, plus Shwartz so far), and 6 conservatives (Rendell, Vanaskie, Jordan, Fisher, Chagares, Hardiman). Krause has not voted in a decided en banc yet.

A few more thoughts on the ideology data:

  • The conservative judges were more predictable than the liberals. Chagares and Hardiman were the only two judges who never disagreed. And in the 6 most ideologically charged cases, 3 judges voted conservative every time, 0 voted liberal every time.
  • Smith’s moderately liberal en banc voting record is probably not what George W. expected; Vanaskie’s conservative record is probably not what Obama expected.
  • Rendell’s en banc votes do not align with her reputation. By my count, she voted with the conservatives more than half the time; and in the more ideologically charged cases, she voted with the conservatives two-thirds of the time.
  • Again, I’m not sure how much stock I put in the ideology analysis here. It’s a fairly small sample size, my choices about which side is liberal or conservative are debatable, and my choices about which cases are more ideological are debatable, too. Circuit judges regularly follow controlling precedent over their own policy preferences. En banc voting patterns may not match panel voting patterns. Bottom line, I think these numbers are interesting and suggestive, but far from definitive.

Anyway, so much for ideology. What does all of this mean for lawyers practicing in this circuit? Here are the conclusions I draw about Third Circuit en banc practice:

  1. Don’t get your hopes up. The court grants rehearing en banc in about 1 decided case in 1000. Federal Appellate Practice‘s observation applies here: “filing a petition for rehearing is a little like buying a lottery ticket. It most often will prove a waste of time and money. But occasionally–and sometimes unpredictably–it will produce an enormous return.”
  2. Your best hope for getting en banc rehearing might be to overrule a prior precedent. Of the last 6 CA3 en banc decisions, 4 overruled prior precedent. In 3 of those 4, the overruled precedent had made CA3 an outlier. Two other factors leading to recent en banc overrulings: subsequent CA3 and Supreme Court cases had eroded the precedent, and the precedent caused confusion and uneven results. The opinions provide a valuable roadmap for lawyers looking for effective arguments for en banc rehearing.
  3. Don’t wait until after the panel has ruled to argue why the precedent should be overruled. Panels lack the power to overrule prior precedent, so you may be tempted to hold your arguments about overruling a case for your rehearing petition. But these cases show that’s a mistake. When the Third Circuit grants rehearing en banc to overrule a prior decision, it usually does so before the panel rules, per 3d Cir. IOP 5.5.4  (requiring internal circulation of all published and split-panel unpublished opinion drafts). Of the 6 cases I see where the court overruled a precedent, rehearing was granted before the panel had ruled in 5; only once since 2010 has the en banc court overruled a precedent after the panel had ruled.
  4. Don’t expect the en banc court to trump an outlier panel. In some other circuits, en banc rehearing is often granted when the court’s majority wants to wipe out a ruling from an ideologically unrepresentative panel (like when you draw a panel with two liberals in a majority-conservative circuit). If that sort of nakedly ideological use of en banc rehearing happens in the Third Circuit these days at all, it is rare. It may have happened in Katzin, where Greenaway and Smith went from panel majority to en banc dissenters in an ideologically charged case. But even Katzin involved an important novel issue, not a garden-variety instance of we-disagree-with-the-panel. So, as far as I can tell, the court is honoring its IOP 9.3.3 claim that it does “not ordinarily grant rehearing en banc when the panel’s statement of the law is correct and the uncontroverted issue is solely the application of the law to the circumstances of the case.”

The 18 CA3 en banc cases since McKee became chief, from most recent to oldest, are:

US v. Katzin

US v. Flores-Mejia

Rojas v. AG

Al-Sharif v. US C&I

US v. Quinn

US v. Caraballo-Rodriguez

BH v. Easton SD

Morrow v. Balaski

Garrus v. Secretary

US v. Mitchell

Singer Mgt v. Milgram

Layshock v. Hermitage SD

US v. Blue Mountain SD

Sullivan v. DB Investments

In re Global Indus. Tech.

In re Grossman’s

US v. Rigas

Puleo v. Chase Bank