Judge Sutton voted to deny a petition for rehearing en banc in Mitts v Bagley (pdf) even though he disagreed with the panel’s decision that a jury instruction was unconstitutional. His concurrence, which was joined by Judge Kethledge, states both his disagreement on the merits and his reasons why the case should not be reheard en banc. This opinion offers a rare glimpse on the calculus that appellate judges conduct in considering en banc petitions.

Judge Sutton’s concurrence explains that the panel decision did not implicate any of the traditional grounds for full court review. There was no disagreement between the circuits, and there was no important federal question since Ohio had stopped giving the jury instruction in 1996. He noted that any intra-circuit conflict was “a question that frequently calls for case-specific judgments that differ in degree but not in kind.” However, Judge Sutton seemed most concerned with institutional reasons for limiting en banc review:

In the run-of-the-mine case that ground [a disagreement with the panel’s decision on the merits] rarely suffices, else many cases a year would be decided in panels of 16, a rarely satisfying, often unproductive, always inefficient process. No one thinks a vote against rehearing en banc is an endorsement of a panel decision, as other judges have said and as my explanation in this case confirms. . . .

If the goal is to produce consistent and principled circuit law, moreover, it is fair to wonder whether a process that requires a majority of circuit judges to sit in judgment of two or three colleagues does more to help than to deter that objective, particularly when the central ground for review is mere disagreement on the merits. The judges of a circuit not only share the same title, pay and terms of office, but they also agree to follow the same judicial oath, making them all equally susceptible to error and making it odd to think of the delegation of decisionmaking authority to panels of three as nothing more than an audition. Saving en banc review for “the rarest of circumstances,” . . . thus “reflects a sound, collegial attitude,” one worth following here.

Convincing a majority of active judges that an issue was wrongly decided (or conflicts with another decision) is therefore not the most important part of an en banc petition. An en banc case draws on intra-circuit political capital, consumes scarce judicial resources, and diverts the attention of the entire court for just one case. A petition must show that the result will be worth the price.