Politics matters. But, sometimes, it doesn't. That's one lesson you might get from the lineup in this opinion and resulting en banc call.
At issue is a big, prominent Latin cross that sits atop Sunrise Rock on federal land in the Mojave National Preserve. The Ninth Circuit held back in 2004 that the maintenance of that cross violated the Establishment Clause, and one month after the oral argument in that case, sensing the writing on the wall, Congress passed a statute that would transfer ownership of the cross -- and a tiny parcel of land upon which it sits -- to a private party (the VFW) in order to keep the cross but "cure" the violation. After the transfer began to progress, on remand, the district court held that this manipulation didn't solve the problem, and that there was still an Establishment Clause violation. Which in turn spawned the (predictable) second appeal.
Judge McKeown wrote for a unanimous panel that, yep, the district court was correct, and that creating "a little donut hole of land with a cross in the midst of a vast federal preserve" didn't negate the Establishment Clause violation, especially given the (decidedly non-neutral) conditions of the transfer. At which point, in light of the politically sensitive (and high-profile) nature of the dispute, there was the predictable call for a rehearing en banc.
Full disclosure: I think the panel was clearly right on this one. And, indeed, the en banc call fails. But who dissents from the denial? Mostly who you'd predict, of course. Judge O'Scannlain authors the dissent, and it is a very good one -- indeed, both in style and substance it reads like a petition for certiorari, focusing on circuit splits and national importance, as well as the merits. Which, obviously, is deliberate. Who joins the dissent? The usual reliable conservatives, including Judges Bybee, Callahan, and Bea. As well as Judge Tallman, who's a Clinton appointee but who's joinder on this one is hardly surprising.
But what's equally interesting is who's missing. None of the strong libertarian-leaning (and somewhat more, artfully put, "academic") conservatives sign on. Chief Judge Kozinski doesn't join, which is not too surprising, as he wrote the original opinion back in 2004 (though that one was deliberately and tellingly phrased in terms of precedent rather than his own views). Nor does Judge Kleinfeld or Judge Clifton. Even Judge Rymer doesn't join the dissent, nor do the three most recent appointees (Judges Smith, Ikuta, and Smith). The latter may well be explained by their roles (e.g., newness on the court), which may make them reluctant to stand up so quickly and publicly dissent from the denial in a case like this. Still, both who joins the dissent, as well as who doesn't, in this one is interesting. And, I think, says a lot about at least some of the personalities and predelictions on the court.
