MA v. HHS and En Banc Review

As people probably know by now, today a three-judge panel struck down Section 3 of the Defense of Marriage Act.  One question that has come up in various places is whether the defenders of DOMA will ask the First Circuit for an en banc review or proceed directly to the Supreme Court.  Interestingly, the First Circuit's opinion contains this line:

"Anticipating that certiorari will be sought and that Supreme Court review of DOMA is highly likely, the mandate is stayed, maintaining the district court's stay of its injunctive judgment, pending further order of this court." 

Now, we've known for a long time that en banc decisions are more likely to be reviewed by the Supreme Court; as H.W. Perry noted in his terrific book over twenty years ago, the justices often like cases to "percolate" before coming to the Court.  And the first Circuit, despite its small size, does on occasion decide cases en banc (see, e.g., here).

At the same time, as I and others have noted elsewhere, the First Circuit -- which has only five active judges -- generally has a low rate of en banc review of panel decisions.  Moreover, the decision here was (a) unanimous, and (b) made by three of the circuit's five active judges (Judges Lynch, Boudin, and Torruella), without participation by any of the circuit's senior judges or any district court (or other appellate court) judges sitting by designation.

But even if the respondents are confident of a cert grant, does it make sense to petition for an en banc rehearing?  As has been widely noted, the panel that issued the decision was comprised of two Republican appointees and one Democratic one.  A quick look at the First Circuit judges' "GHP scores" (above) indicates that the composition of ideologies in the First Circuit panel is essentially the entire range of the circuit (note that there is no score available for Obama appointee Judge O. Rogeriee Thompson). That would suggest that the likelihood of a reversal en banc is exceedingly low.

Comments

[JDH]

For what it's worth, Judge Thompson's GHP score is -0.455. This is based on averaging the Common Space scores of Rhode Island Senators Reed (-0.425) and Whitehouse (-0.485).