The outcome falls perfectly on political lines. It's a habeas case, and all the judges appointed by Democratic presidents vote one way whereas all the judges appointed by Republican presidents vote the other way. That isn't all that unusual, though it's not necessarily typical either.
But the panel composition -- and hence the vote -- is the part that's relatively rare.
The Ninth Circuit currently consists of 29 active judges, a slight majority of whom (16) were appointed by Democratic presidents. So in a normal distribution, in an 11-member panel, you'd expect almost exactly 6 Democratic-appointed judges and 5 Republican-appointed judges on your typical en banc panel. (Ignore for the moment the fact that the chief judge is always on the panel and that senior judges who are on the three-judge panel can potentially participate.)
But here, there are 8 Democratic-appointed judges and only 3 Republican-appointed judges. Which in turn results in an 8-3 vote.
Given the current makeup of the Ninth Circuit (again, ignoring chief and senior judge effects), there's only a 13.5 percent probability of there being 3 or fewer Republican appointees on an en banc draw. (Even taking into account that the chief judge is currently a Democratic-appointed judge, the chance of 3 or fewer Republican appointees on the panel is still less than 18.5 percent.) So it's rare to see an en banc panel draw like this one. Pretty darn rare.
And what's even more rare is that there (1) isn't a single Trump appointee on the panel, and that (2) all three of the remaining Bush appointees are on the panel. The chances of that happening are too strange for me to calculate; the probability of drawing all three of the Bush appointees is around three and a half percent, and the chance of doing that plus drawing none of the Trump appointees is pretty much absurdly smaller. As well as getting smaller every day as more Trump appointees come on.
So enjoy today's en banc panel. You're not likely to see something like it any time soon.
