Howard Bashman (How Appealing) notes, apropos a Solomon Amendment case, that “In the Third Circuit, however, rehearing en banc is not available if a majority of the judges in regular active service is recused from hearing a case. A notice enclosed with the copy of yesterday’s Third Circuit ruling that the court sent to me by mail indicates that a majority of the Third Circuit’s active judges is recused from the case.” Therefore, while I predicted that the case would go to the U.S. Supreme Court if the Third Circuit doesn’t rehear it en banc, it sounds like I need to get rid of that “if” clause. Howard agrees:
Often the U.S. Supreme Court will refrain from hearing cases that involve the grant or denial of a preliminary injunction, because that relief will be superseded once the trial court issues its final adjudication. In this instance, however, that usual reluctance may not exist, because yesterday’s Third Circuit ruling leaves little doubt how the case must be resolved on the merits in the district court.
What’s more, because the case holds unconstitutional the application of a federal statute, the U.S. Supreme Court is especially likely to review it. Just as the Court tends to want to review “splits,” which is to say solid differences of opinion, among lower courts, so it tends to want to review splits between the legislative and executive branches on the one hand and the lower courts on the other.
By the way, if anyone has any well-informed thoughts about why so many Third Circuit judges recused themselves, please let me know.
UPDATE: Several people suggested that some of the judges may be on the Boards of Trustees (or, in some schools, Boards of Visitors) of some of the private schools involved in the litigation, or might possibly teach at those schools at adjunct professors. But at this point this is just speculation; I’ve seen no concrete evidence. I suppose it’s also possible that some might have children at those schools; I take it that’s why Justice Thomas recused himself from the Virginia Military Institute case — I doubt that recusal would be strictly required in such a situation, but maybe some judges are erring on the side of caution there.