Think that the en banc draw doesn't matter? Or that having the chief judge automatically on the en banc panel doesn't make a difference.
Think again. Here, it may well be the difference between life and death.
The vote is 6-5 to overrule circuit precedent and overturn the death sentence here. Judge Fletcher writes the majority opinion. Joined by Chief Judge Thomas and Judges Wardlaw, Berzon, Christen, and Nguyen.
That makes six. Judges Kozinski, Gould, Tallman, Callahan, and Bea dissent. That's five. One less.
One different person on the draw might have changed the result.
Indeed, if the (archaic) rule about the chief judge automatically being on the en banc court didn't exist, by my count, there'd be around a one-in-three chance that Mr. McKinney would remain sentenced to death.
It's a lottery. With rules that matter. And sometimes make a dispositive difference.
