It's been an en banc bonanza in the last couple of days. The Ninth Circuit took two cases -- Castillo and Aukai -- en banc on Monday. And then they just took this one -- Jernigan -- en banc as well.
I'm not especially surprised to see this last one go up. I blogged about this one when it came out, and mentioned that Judge Betty Fletcher's dissent was pretty good. (Then again, so was Judge Thompson's opinion, in my view.) The case highlights starkly divergent judicial philosophies. And, in truth, I think that there may currently be more judges on the Ninth Circuit with Judge Fletcher's philosophy than with Judge Thompson's.
So it'll be worthwhile to see what the draw is for the en banc panel. But, barring something unusual, I'd be surprised if you didn't see the panel opinion get reversed en banc.
We'll see.
