Once every four years or so -- say, every February 29th -- you see something unusual.
Here's what Judge Clifton adds today to his separate opinion back in December: "You may have five votes, Judge Noonan. Which is more than my four. But five isn't half of eleven. So my four votes is the law, and your five isn't. Gotcha!"
Oh, wait. Those were my words. Here are Judge Clifton's: "The plurality opinion has been joined by only five of the eleven judges on this limited en banc panel. Because that constitutes less than a majority of the panel, that opinion does not announce the law of this circuit. The precedential effect of this decision does not extend beyond the conclusions expressed in this separate opinion, which concurs in the judgment on more narrow grounds. See Marks v. United States, 430 U.S. 188, 193 (1977)."
He says it so much nicer than I did. Still, it's the same message. And he's right.
