Sometimes the composition of the en banc court doesn't especially matter (see, e.g., here), or the votes aren't entirely predictable (see, e.g., here).
But then there are cases like this one. And, boy, what a case. The question is whether preferences for Native Hawaiian students discriminate on the basis of race in violation of 42 U.S.C. sect. 1981. Judge Bybee wrote a panel opinion (which I discuss here) concluding that they might, and to the shock of no one, the Ninth Circuit voted to take the case en banc.
At which point the en banc court votes 8-7 to uphold the preferences. In a series of opinions that spans 100-plus (single-spaced) pages and that contains a majority opinion, a concurrence, and four separate dissents.
Judge Graber writes the majority opinion, and does so both colorfully and with a distinct sense of history. And Judge Bybee -- who authored the very well-written panel opinion -- reprises this role in the principal dissent.
Everyone does a very good job here of articulating their distinct vision. In the end, however, it's a case where one need merely count the votes. And in which the draw made a huge difference. The eight-member majority consists entirely of Carter and Clinton appointees (interestingly, each of the three of the remaining active Carter appointees -- Schroeder, Pregerson, and Reinhardt -- were on the panel). By contrast, the seven dissenters were almost exclusively Republican appointees: both of the remaining active Reagan appointees (Kozinski and O'Scannlain) as well as both of the remaining active Bush I appointees (Rymer and Kleinfeld) were on the panel, and they were joined by a couple of Bush II appointees. So there was a sharp -- and very predictable -- ideological split here, with the only exception being Judge Tallman's decision to join the dissent.
So a very close 8-7 vote in which the draw made a huge difference.
Parenthetically, I very much agree with Judge Kozinski when he says, on page 109, that "the question is close and ours may not be the last word." I wouldn't at all be surprised to see the Supreme Court take this one up.
