Bench Memos

Somewhat Higher Than One in 7.87 Trillion

Josh Blackman reports that an attorney for a group defending the marriage laws of Nevada and Idaho has filed a petition for rehearing en banc in the Ninth Circuit that alleges that the “appearance is strong and inescapable that the assignment of this case to this three-judge panel was not done through a neutral process but rather was done in order to influence the outcome in favor of the plaintiffs.”

Law professor Derek Muller calculates at roughly one in 1,000 the odds that any single active judge on the Ninth Circuit would be randomly assigned to all three recent Ninth Circuit panels involving challenges to marriage laws and/or alleged sexual-orientation discrimination. But Reinhardt did indeed sit on all three (yes, even the case in which the ACLU affiliate that his wife led had taken part and in which she had publicly “rejoice[d]” over the district-court decision that Reinhardt would be reviewing).

Reinhardt’s seeming luck isn’t limited to these three cases. Concerns have circulated for years among conservative judges on the Ninth Circuit about Reinhardt’s amazing propensity to be selected to sit on important cases with a strong ideological valence. (You’ll find some of the cases here.) I’ll leave it to an advanced statistician to try to figure out the odds that random assignment would place Reinhardt on all of the larger set of cases. Perhaps it wouldn’t reach one in 7.87 trillion—the odds (according to DNA analysis) that someone other than Bill Clinton was responsible for messing up Monica Lewinsky’s blue dress—but I’m confident that it would be incredibly low.

I’m strongly inclined to wonder whether nefarious hijinks in the Ninth Circuit clerk’s office in San Francisco, rather than sheer luck, would explain the phenomenon. The clerk’s office could dispel such concerns if it disclosed any safeguards that it deploys to protect against such an abuse.

[Note: About ten minutes after my initial posting, I deleted a sentence from the second paragraph that I decided mispresented the odds.]


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