My thought is that the various Ninth Circuit judges here are each trying to make a point.
Judge Bumatay, joined by five other judges, would grant the petition for rehearing en banc, and explain at length (35+ single-spaced pages) why they think the panel got the decision wrong and (perhaps) why the Supreme Court should take the case up and reverse. This isn't unusual, but it's an increasing theme these days.
There's also a concurring opinion that agrees with the panel and with the denial of en banc review. That's not all that surprising either; you see those on occasion as well.
But this one's a bit unusual, for two reasons.
First, the concurrence is authored by all three of the members of the original panel. They, of course, agree with what they previously decided. But usually it's just one of them listed as the author. This time it's all three, jointly. Sort of an exclamation point.
Second, as is typical, some other Ninth Circuit judges join the concurrence as well. Sometimes you see two, or in high profile cases, even six or so. This is not surprising. After all, a majority of the judges, by definition, didn't want the case taken en banc. So sometimes the individual judges join the opinion that explains why -- but usually, most of them don't, thinking that it's unnecessary.
How many judges join the opinion here that concurs in the denial of rehearing en banc?
Sixteen.
That's a huge number. More -- much more -- than you typically see.
And it's not even a super high profile case. It's about tribal jurisdiction in an insurance case. An issue that's hardly going to make the front page of your local newspaper or become an issue in an upcoming election.
It's not just that, though. Typically, the judges that join the opinion concurring in the denial of rehearing are those active judges who voted against rehearing en banc. This time, though, the concurrence includes multiple senior judges as well -- including judges who didn't even have a vote in the en banc call.
Unusual, to say the least.
I think the liberal wing of the Ninth Circuit is trying to send a message here; namely, that this wing isn't going to sit back like usual when particular judges on the conservative side pen lengthy dissents from the denial of rehearing en banc. Instead, on occasion, at least, they're going to join the fight and show the flag. If only by identifying the number of votes on the other side -- particularly when that number is substantially larger than the number of votes recorded for the competing position.
I also sense a little bit of frustration here. Recorded in (somewhat) real time.
