Throwback Thursday: en banc edition

Let’s first throw back to Freddy’s post on the Wollschlaeger v. Florida decision, which held constitutional a law restricting what doctors can say to their patients about guns. Yesterday First Amendment scholar Eugene Volokh wrote a lengthy post about the Eleventh Circuit’s 2-to-1 decision on his influential blog. Volokh concludes that “the court is mistaken, and the law should have been held to violate the First Amendment.” He goes on:

[E]ven intermediate scrutiny—if that’s the right test—requires some serious justification for a speech restriction. Among other things, it requires that there be a “reasonable fit” between the speech restriction and the supposedly important reasons justifying the restriction. And here … there’s no such fit.

In the comments to Freddy’s post, someone expressed displeasure with the decision, writing that this is “another important case” where—and I’m editorializing slightly—the deciding vote on appeal was made by a district judge sitting by designation. This raises a question, irrespective of the merits of this undoubtedly important case: Should the fact that there was only one active Eleventh Circuit judge in the majority be considered in deciding whether to rehear the case en banc?

My initial inclination is that it shouldn’t be. Federal Rule of Appellate Procedure 35, which sets forth the standard for when rehearing en banc should be had, says nothing about it. Considering the composition of the judges in the majority may lead to more rehearings en banc. And treating differently decisions in which visiting judges are in the majority just doesn’t seem appropriate.

But it’s an interesting question, and others think that where a dispositive vote is made by a district judge sitting by designation, “experience teaches that the case has a better than average chance of rehearing en banc.”

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Remember United States v. Davis, the en banc decision on the constitutionality of obtaining without a warrant cell-site information that we covered a few months ago?

Yesterday, Judge Koh of the U.S. District Court for the Northern District of California issued a lengthy order affirming the denial of the government’s application for historical cell-site location information, stating that where “an individual has not voluntarily conveyed information to a third party, her expectation of privacy in that information is not defeated under the third-party doctrine.” Judge Koh said her decision was “not at odds” with Davis, which she said, citing Judge Jordan’s concurrence, was “limited by its facts.” Judge Koh also quoted Judge Martin’s dissent in concluding that the government must “secure a warrant supported by probable cause in order to obtain a cell phone user’s historical [cell-site location information].”