Could the 11th Circuit vote have been 7-5? That’s what someone suggested at SA. It’s also worth remembering that a vote to take a case en banc is not the same as a vote on the merits. Sometimes judges believe a case is en banc-worthy even if they think it was correctly decided. (The converse is possible as well, though much less likely.)

About the Author
Jonathan H. Adler is a professor at William & Mary Law School.
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