The Proliferation of Dissents from the Denial of Rehearing En Banc
Each week my email inbox receives links to published opinions released by the Fourth Circuit. When I saw the link for Jane Doe v. Fairfax County School Board, No. 19-2203, I almost did not click on it. It was an order denying rehearing en banc and my first thought was, what could be enlightening about that? Luckily, I thought twice. After all, the Fourth Circuit decided to publish this order, so there must be more to it. Indeed, there was.
The first line of the order reads as one would expect: “The court denies the petition for rehearing en banc.” But what follows is an unexpected exchange between a concurring opinion and two dissenting opinions in which the concurrence writes to “confront” the dissent about a practice that is appearing with more frequency in the Fourth Circuit – dissenting from denials of rehearing en banc.
After the court’s majority voted to deny rehearing en banc, rather than let a simple order issue, Judge Wilkinson and Judge Niemeyer issued two separate dissenting opinions addressing the merits of the case and articulating the points of law that they believed merited a rehearing.
These dissenting opinions then prompted Judge Wynn to issue a concurring opinion, not just to review the merits of the case that supported the majority’s vote denying review; but rather, to criticize the practice in general. Judge Wynn characterized the dissenting opinions as “advisory opinions that purport to dissent”; but which “provide next to no explanation” for why they are dissenting in the first place; and which serve as “no more than advisory opinions that read like editorials or legal commentary on the three-judge panel decision.”
Judge Wynn explained that until recently, this was uncommon practice in the Fourth Circuit that was not only “unusual” but rather, was “extraordinary.” Other circuits began dissenting from denials of rehearing en banc in 1943 and since that time the practice has “picked up steam.” A recent example from the Fifth Circuit can be found in Ramirez v. Guadarrama.[i]
Normally, the dissents are written by judges other than the panel dissenter, but in this case, the advisory opinions included opinions from the panel dissenter who initiated the poll (Judge Niemeyer) and a non-panel member (Judge Wilkinson).
Judge Wynn said that “the proliferation of dissents from the denial of rehearing en banc” has sparked a “heated debate among academics and judges alike”.
So why do judges issue dissenting advisory opinions? It has been said that judges justify this practice because “there has been some indication from members of the Supreme Court that they find dissents useful in deciding whether to take cases on certiorari.” Additionally, judges in other circuits have taken heed of these dissents, and there have even been instances of congressional reports citing the dissenting opinions.
Are there drawbacks to these dissents? Judge Wynn cautioned that these types of dissents are “inappropriate” and read “like petitions for writs of certiorari” by providing one judge’s blueprint for how a party ought to frame the case before the Supreme Court. This potentially amounts to circuit judges engaging in “advocacy for further review” and comes at the cost of not “upholding [the Court’s] decision-making processes once they are completed.” If indeed some “members of the Supreme Court” have indicated they find the dissents useful in deciding whether to take a case, this practice is an open invitation for individual judges to freely submit advisory opinions to the Supreme Court.
Judge Wynn also warned that such dissents “may harm the public image of the judiciary” because the opinions can create an “overblown appearance of internal dissension and disarray.” Similarly, dissent by a non-panel member that addresses the merits may signal to the public a sense of disrespect for the hard work of the panel, especially for the full court’s decision not to take a case en banc. Further, a non-panel member weighing in on the merits may “call into question the value of the judicial process as a whole” since that member did not read the parties’ briefs or hear their oral arguments.
According to Judge Wynn, advisory opinion dissents also tend to demonstrate a certain level of politics because they imply that there is an “ideological preference so strong that it compels a judge to interpose herself in a dispute in which she has not been called to participate[.]” Judge Wynn’s concurrence, relying on an article from 2013, indicated that the Supreme Court granted review in cases with dissents from denial of rehearing en banc by Republican affiliates approximately 35% of the time, compared to a Democratic affiliate success rate of only 17%.
Judge Wynn concluded by recommending that Federal Rules of Appellate Procedure Rule 35 be modified so as to reflect that these types of opinions neither supplement the panel decisional opinions nor constitute the law of the circuit.
What did the dissent have to say about Judge Wynn’s opinion? In Judge Wilkinson’s dissent, he addressed Judge Wynn’s “reservations.” Judge Wilkinson believes that where a call for a poll is before the court, judges are entitled to explain their reasons for their vote. The “[r]easoning adds to judicial transparency; it does not detract from it.” Judge Wilkinson agreed that dissents from the denial of rehearing en banc should not be routine. But for “crucial” issues, discussion should not be arbitrarily curtailed. The “absence of a dissent from denial would leave only one side of an issue expressed” and everyone is “better off” for having a debate.
Whether or not you agree with the practice of dissenting from denials of petitions for rehearing en banc, one thing is for sure, the odds of getting Supreme Court review appear better because of it. Whether your issue falls into the 17% success rate (when dissents from orders denying rehearing are written by a Democratic affiliated judge) or the 35% success rate (when written by a Republican affiliated judge), you are still better off since overall, the Supreme Court only grants approximately 1% of all petitions for writ of certiorari each year.[ii]