“Twenty-seven percent of all en banc decisions in 2018-2020 were decided in nearly perfect blocs divided by appointing party,” they wrote. That was almost double the rate of such splits during the administrations of Presidents Bill Clinton, George W. Bush and Barack Obama, they wrote, “and is far higher now than in any of the years we studied over six decades.”
The recent partisan behavior on en banc courts was in one sense bipartisan: Appointees of both Democratic and Republican presidents were increasingly likely to engage in it.
Reconsideration of panel decisions by full appeals courts is very rare and dropping in frequency. “The courts now review a mere 0.19 percent of decisions en banc, down from 1.5 percent in 1964,” a study found last year. But when it occurs these days, Professors Devins and Larsen noted, it is increasingly animated by partisanship.
Professor Devins said that was troubling. “The cost to collegiality and perhaps the cost to judicial independence and legitimacy can make en banc quite destructive,” he said.
Mr. Trump appointed 54 judges to federal appeals courts, or about 30 percent of the total number of active judges. That flipped three appeals courts to Republican control and bolstered the party’s majorities on others.
Since President Biden took office, several appeals court judges have announced that they are taking senior status, a sort of semiretirement that creates a vacancy.
“We’ve just had real changeover in the last administration, and we’re about to see it again,” said Marin K. Levy, a law professor at Duke and the author of a new article in The Northwestern University Law Review on senior judges. “These kinds of personnel changes have huge effects on the courts.”
