They say -- okay, even I say -- that the en banc draw doesn't always matter. Which I believe, if only because I say it.
But sometimes it does. Here's one of those times.
It's a set of opinions that you'd want to read wholly apart from the vote lineup. Both because it's a sensitive issue as to which there are strong opinions on both sides and also because the opinions are all quite well-written. Each does a very good job of articulating their particular vision of the proper resolution of the issue.
I'll save my comments on the substance of the opinions for now. Let me simply say that I think a different -- more representative -- draw might well have changed the result.
The vote was 6-1-4: Six votes for finding routine strip searches of prisoners to be constitutional, one vote for finding this practice to be unconstitutional (but protected in this particular case by qualified immunity), and four votes for finding the practice unconstitutional and finding liability. The six votes on the topside generally consisted of the conservatives: Chief Judge Kozinski and Judges Rymer, Clifton, Ikuta, and Randy Smith, plus Judge Gould. So a Reagan, a Bush I, and three Bush II's, plus a Clinton. Whereas the four and one votes were all Clinton appointees.
Let's assume the case went full en banc. What's the likely vote? To put it another way: What's the result if the limited en banc court was representative of the court as a whole? Which is the central purpose of the limited en banc court in the first place, after all.
Here's my (very strong) prediction: 14-13. The other way; e.g., finding the practice to be unconstitutional (albeit, by a slim margin, protected by qualified immunity).
Let me give you some additional teaser data to support my conclusion that panel draws matter. If I'm right about the likely votes of each of the judges, this case is one of those rare instances in which the draw is the critical thing that matters. Before conducting the draw, the probability of finding the practice to be unconstitutional in the limited en banc court is exactly 50/50. Hence the panel draw is the most important thing that matters.
One more statistic. Assume the Ninth Circuit still had 15 member en banc panels. What's the probability that this case goes the other way? Almost 40 percent.
In short: Draws matter. As do rules and procedures. Sometimes critically.
