Must Reads on Prop 8 Case, and an En Banc Twist: the Ninth Circuit Can Go En Banc on Its Own

Dahlia Lithwick, Jason Mazzone, Eugene Volokh, Orin Kerr, Adam Winkler, Lyle Denniston, Chris Geidner.  Jason Mazzone raises the key point: the Reinhardt one-way-ratchet idea is too cute by half.  A far better opinion would have addressed the issue of same sex marriage directly, and not disingenuously hide behind the “taking rights away” argument.

In my earlier post on this case, I discussed the calculations which Prop. 8 supporters will be going through on en banc appointments.  An appellate lawyer friend emails along the following thoughts: “I want to mention one point related to your third thought that the initiative proponents might prefer to avoid the en banc process and go straight to the Supreme Court. The proponents may not actually have that choice because the Ninth Circuit can take the case en banc sua sponte if the proponents decline to petition for rehearing. (Two recent examples of sua sponte en banc calls are Nordyke v. King, No. 07-15763 (May 18, 2009) (successful) and United States v. Paul, No. 08-30125 (June 22, 2009) (unsuccessful).) I can imagine some Ninth Circuit judges wanting to force an en banc vote. For those judges, it’s a no-lose strategy. Either the case actually goes en banc and Judge Reinhardt’s opinion is vacated, or those judges will get to write a published dissental if there aren’t sufficient votes to go en banc. The Ninth Circuit’s Byzantine en banc process can occupy months of time, and there’s little the proponents could do in the meantime. I can’t imagine the Supreme Court entertaining a cert petition while the en banc process is underway.”

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