“What nonsense!”—perhaps an apt motto for the Ninth Circuit generally—is part of Judge Diarmuid O’Scannlain’s withering critique of the panel decision in Freedom from Religion Foundation, Inc. v. Chino Valley Unified School District. In ruling that a school board’s practice of allowing an invocation to be offered at its meetings violates the Establishment Clause, the panel concludes that school-board meetings are not legislative in nature and that the Supreme Court’s rulings on legislative prayer therefore do not apply. Instead, as O’Scannlain complains, the panel “bizarrely transforms the Board meetings into a ‘school setting’” and implausibly maintains that any students who choose to attend a board meeting are somehow “under the control of public-school authorities.”
O’Scannlain issued his opinion in protest against the Ninth Circuit’s refusal to grant en banc rehearing of the panel ruling. His opinion was joined by seven other judges, including Clinton appointee Johnnie Rawlinson.
I was surprised to learn from the first footnote in O’Scannlain’s opinion that Ninth Circuit judges in senior status are able to take part in discussions of en banc proceedings. (They can’t cast votes on en banc petitions; that’s why O’Scannlain’s opinion is “respecting the denial of rehearing en banc,” rather than a dissent from the denial.) I ask informed readers to let me know whether any of the other circuit courts allow senior judges to take part, as they see fit, in en banc discussions. (I have in mind that some courts might allow senior judges to take part in en banc proceedings on cases in which they were on the original panel.)
I also found it curious that the 36-page panel opinion was issued “per curiam” rather than as the handiwork of one of the three members of the panel. I half wonder whether Judge Kim McLane Wardlaw, having earned a remarkable record of summary reversals by the Supreme Court (several in the face of O’Scannlain dissents), decided to disguise her role.