Via How Appealing I've learned that two more judges on the U.S. Court of Appeals for the Second Circuit have issued opinions respecting the court's denial of en banc review in Ricci v. DeStefano. Judge Calabresi concurred in the denial, and Chief Judge Jacobs dissented. As I suggested in my prior post, I think the dissenters have the better of the argument. Chief Judge Jacobs makes some particularly important points in response to his colleagues' reliance on the Second Circuit's "tradition" of denying en banc (or, as preferred in the Second "in banc") review.

The grant or denial of in banc review is governed by 16 Fed. R. App. P. 35, which says that in banc rehearing is disfavored--unless such review is needed for coherence of the Court's decisions or "the proceeding involves a question of exceptional importance." Fed. R. App. P. 35(a). Accordingly, the next subdivision of Rule 35 requires the petition to explain why the case falls within one or both of these categories. See Fed. R. App. P. 35(b).

This weighing calls for an exercise of discretion. . . .

No doubt, the proper exercise of discretion results in the denial of review in the overwhelming number of cases. And the resulting pattern may resemble the pattern of denial that would result from saying "no" by tradition. But the decision to grant or deny in banc review is like any other discretionary decision in the sense that discretion should be exercised, not elided or stuck in a default position. . . .

The exercise of discretion to hear cases in banc is integral to the judicial process. The advisory notes emphasize that "an en banc proceeding provides a safeguard against unnecessary intercircuit conflicts." See Fed. R. App. P. 35, Advisory Committee Notes 1998 Amendments). In other words, issues of exceptional importance that may divide the circuits should be subject to in banc review lest a three-judge panel adopt a rule of law that would not command a majority vote of the appeals court as a whole, and thereby provoke an avoidable circuit conflict that the Supreme Court would have to resolve.

I do not think it is enough for us to dilate on exceptionally important issues in a sheaf of concurrences and dissents arguing over the denial of in banc review. If issues are important enough to warrant Supreme Court review, they are important enough for our full Court to consider and decide on the merits. Of course, if an in banc poll discloses broad-based agreement with the panel opinion, in banc review may be a spinning of wheels. Under such circumstances, it may very well be an appropriate exercise of discretion to deny rehearing in banc. But to rely on tradition to deny rehearing in banc starts to look very much like abuse of discretion.