I could write (literally) several dozen pages about this en banc decision today. Which might start with a critique of the manner in which Judge O'Scannlain unhelpfully begins his opinion, with a first paragraph that reads (in its entirety): "We are called upon to decide whether an alien may be removed from the United States for having been convicted of a crime involving moral turpitude as determined under federal immigration law." To which I might respond by noting that here's a difference between "framing the question in your favor," on the one hand, and "setting forth an alleged 'question presented' that's essentially tautological and doesn't shed light at all on what the case is actually about."
But even apart from the merits -- which I briefly discussed when the panel's opinion came out a year and a half ago, and which arguably involves (as Judge Berzon cogently asserts in the dissent to today's opinion) "the epitome of an unreasonable agency interpretation" -- I wanted to point out that, to me, the sharp 6-5 split demonstrates a couple of realities.
First, panel draws sometimes matter, even at the en banc stage. A different draw and this case comes out the other way. Second, sometimes -- albeit rarely -- the Ninth Circuit risks getting overturned by the Supreme Court not for being "too liberal," but for being too much in the other direction. This is one of those exceptional cases.
Finally -- and I've never, ever said this before -- I think this is a case in which there's a nonzero chance that someone might call, perhaps successfully, for review by the full circuit. You can look at the makeup of the votes individually to see why, but even if you merely use the roughest and most banal of "statistics," one can get a sense. On top of the 6-5 decision are four republican and two democratic appointees and on the bottom side there are four democratic appointees and one republican appointee. Particularly if one breaks out the three Carter appointees and adds that Judge Dorothy Nelson -- who was senior but on the panel -- gets to be in the draw if she'd like (I assume that's the rule with full en banc calls in addition to limited en banc panels), you get a bare majority vote to flip the case around.
Mind you, there are assuredly factors the other way, including the fact that many judges may not vote for full en banc review for administrative or historical reasons, and on the merits the fact that some of the more likely republican defectors who might agree with Judge Bybee (who was the republican dissenter) have already signed onto the topside of the 6-5 (e.g., Judges Kozsinki and Kleinfeld, who are fairly creative thinkers and aren't uniformly knee-jerk).
That said, if there was ever a case in which an en banc draw mattered, in which there's a chance of full en banc review, and in which the Supreme Court might perhaps slap the Ninth Circuit for being irrationally to the right, this is the one.
