William & Mary Bill of Rights Journal
Liberalism Triumphant? Ideology and the En Banc Process in the Ninth Circuit Court of Appeals
More than 40 years ago, President Jimmy Carter, a Democrat, appointed 15 of the then-23 judges of the Ninth Circuit Court of Appeals. Those judges were predominantly liberal, and some were extremely liberal. Ever since then, the Ninth Circuit has been widely regarded as “a reliably liberal appeals court” that predictably issues “rulings favorable to liberal causes.” But some knowledgeable commentators, including Professor (now Dean) Erwin Chemerinsky, have disputed the characterization, calling it a “myth.”
Until now, no one has empirically tested whether the Ninth Circuit is indeed the liberal bastion that it is reputed to be. That is the task undertaken by this Article. The Article draws on a unique database that includes case information not readily available in any public source.
The focus of this study is the court’s en banc process. But analyzing the ideological orientation of the Ninth Circuit presents a special challenge. For all of the other circuits, it makes sense to look at the outcomes of the cases that are heard en banc, because all of the active judges take part in en banc decisions. But in the Ninth Circuit, en banc cases are heard and decided by a limited en banc court (LEBC) composed of the chief judge and ten judges selected at random from among the other 28 active judges. The only judicial activity that involves the participation of all of the court’s active judges is the vote on whether to rehear en banc a case already decided by a three-judge panel. By comparing how liberal and conservative panel decisions fare at the hands of the full array of active judges, we can determine whether the Ninth Circuit deserves the “liberal” label that has so often been attached to it.
This study examines the results of en banc balloting by the full court over the 23-year period from 1998 through 2020. It concludes that the Ninth Circuit is a liberal court, but its liberalism is more nuanced and selective than the conventional depictions suggest. In en banc balloting, the liberal position prevails more often than not—but the conservative side is not shut out. Moreover, when we look separately at the different kinds of issues that generated en banc calls, we find a wide variation in the extent to which the court used the en banc process to produce liberal outcomes.