Josh has shared these thoughts with the listserv, reprinted with permission:
Rick has suggested that today’s 5th Circuit panel decision holding Texas’s voter ID law invalid under Section 2 of the VRA is a good candidate for en banc review, especially given that the panel is somewhat “liberal” for that court. Having clerked on the 5th Circuit, I’m not sure that is entirely correct.Judge Haynes, who wrote the opinion, is a George W. Bush appointee. She has gone with the conservative wing of the 5th Circuit many times (including in the recent Texas abortion case). True, Judge Stewart is pretty liberal, and Judge Brown is a district judge (making her a wash in the en banc analysis as she would not have a vote). Ultimately, the fact that Judge Haynes wrote the opinion is very important here. And it is possible that she purposely wrote a more narrow opinion to avoid having the case go en banc.Typically the strong conservatives on that court (like Judges Jones, Clement, and Smith) need to retain some of the more moderate conservatives to take an ideological case en banc, so losing Judge Haynes here makes en banc review unlikely. I’m not saying it won’t happen, but I think Supreme Court cert is much more likely than en banc review given that Judge Haynes would argue against it (in any internal memos debating the case). For this to go en banc, the conservatives would need to win over moderates like Judges Southwick and Prado, and I don’t see that happening, especially given the fact-intensive nature of the court’s analysis.