Wednesday, June 26, 2019

Biel v. St. James School (9th Cir. - June 25, 2019)

When I'm right, I'm right.  When I'm wrong, I'm wrong.

Vis-a-vis this opinion, I was a little bit of both.

When the panel decision came out late last year, I was definitely on board with the majority opinion by Judge Friedland.  I thought it made great sense.  Still do.

There was a dissent, and I suspected -- correctly -- that it'd get some traction at the en banc stage with various conservative judges on the Ninth Circuit.  But I wrote back in December that these individuals would not be a majority of the court, and that an en banc vote would fail.

On that, I was right.

But I ended the post by saying that I didn't think the vote would be "anywhere near" a majority to take the case en banc.  On that, I adjudge myself incorrect.  The dissent from the denial of rehearing en banc received at least nine votes, since nine judges joined Judge Ryan Nelson's dissent.  All of the signatories were appointed by Republican presidents; indeed, every Bush appointee signed on, as did most of the Trump appointees. 

That doesn't get you a majority.  But it does get the dissent a solid third.

Times are a-changin' on the Ninth Circuit.  There was a period in which moderate liberals were a very large majority on the court.  You're now seeing the resurgence of a solid core of very conservative judges.  Not a majority, to be sure.  But solid.

And I suspect you'll see lots more dissents from denial like this in the future.