Idaho Gov. Butch Otter is asking the 9th Circuit U.S. Court of Appeals to send Idaho’s same-sex marriage case directly to a full, 11-judge panel of the court, rather than the usual three-judge panel. The request for an initial “en banc” hearing is highly unusual. Typically, a three-judge panel hears appeals, and parties can then request a re-hearing by the larger panel, though that step isn’t required – and they can also appeal a three-judge panel’s ruling directly to the U.S. Supreme Court.
In most circuits, an en banc hearing means all 15 of the circuit’s judges hear the case, rather than just a three-judge panel. But because the 9th Circuit is so large – it has 29 active judges – an en banc hearing means an 11-judge panel, consisting of the chief judge and 10 others selected by random draw.
Otter argued in his motion that the larger panel would give the court’s decision greater “perception of legitimacy,” saying, “A decision by an 11-judge panel stands far higher and stronger than does a decision by a three-judge panel, just as a decision by a three-judge panel stands far higher and stronger than does a decision by a single judge.”
Carl Tobias, a professor at the University of Richmond School of Law, said the move wouldn’t necessarily fast-track the case. “Even if it’s granted, I don’t know how much faster it’s going to be,” he said. “It might even slow it down.” That’s because it could take longer to convene the larger panel, and for all 11 judges to decide on how to rule in their decision. “You’ve got 11 of them you’ve got to convince.” The 9th Circuit has set the appeal hearing in the case for the second week of September; you can read my full story here at spokesman.com.