Five months ago, I highlighted a Ninth Circuit ruling by notorious liberal activist Stephen Reinhardt that wrongly held—on an issue involving jury selection (in SmithKline Beecham v. Abbott Laboratories)—that the Supreme Court’s anti-DOMA decision last term in Windsor v. United States requires that heightened scrutiny, rather than deferential rational-basis review, be applied to classifications based on sexual orientation that are alleged to violate equal-protection principles. In the latest link in a long chain of judicial irresponsibility, the Ninth Circuit today issued an order denying en banc review of the case.
Only three of the 29 active judges on the Ninth Circuit recorded dissents from the denial of en banc review. (Seven others were recused.)
Judge O’Scannlain’s strong opinion dissenting from the denial of rehearing en banc faults the panel for (among other things) failing to follow circuit precedent, for instead “arrogating to itself … the power of an en banc court” (and, in so doing, putting the Ninth Circuit “on the short end of a 10-2 split among our sister circuits”), and for “produc[ing] an opinion with far-reaching—and mischievous—consequences for the same-sex marriage debate … without waiting for appropriate guidance from the Supreme Court.”