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SSM Opponents Use Statistics to Argue 9th Cir. Panel Was Stacked

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By William Peacock, Esq. on October 14, 2014 4:09 PM

Now, this is a unique way to request en banc review.

The Coalition to Protect Marriage, a conservative group opposing same-sex (or genderless) marriage, which stood in for Nevada to defend that state's ban when the state refused to do so, really wants an en banc shot. And on the surface, that seems like a long-shot: CPM isn't even really a party to the case, the panel opinion (lengthy concurrences aside) followed directly from recent precedent, and the Ninth Circuit has denied en banc review in those precedential cases.

In other words: solid decision. But, according to a statistical study presented by CPM, that solid decision might rest on a number of other solid decisions that aren't solid at all: They were the result of a stacked deck by gaming panel assignments.

Lucky Panel Draw

When we previewed the oral arguments for the Nevada, Idaho, and Hawaii gay marriage cases, we called the panel assignment "favorable" for challengers to the states' bans. Why? Because liberal judges Stephen Reinhardt and Marsha Berzon were both on the panel. Both were also on the Smithkline Beecham panel, where the court held that heightened scrutiny applied to laws that discriminate based on sexual orientation.

Smithkline Beecham pretty much guaranteed that the gay marriage cases were going to end with a decision in favor of equality. Having such a favorable panel made the case go from "extremely likely" to "foregone conclusion."

But, CPM argues that it wasn't luck at all -- something more sinister was afoot.

441 to 1 (0.002 Percent) Odds of Such an Assignment?

CPM presents some pretty compelling statistics to argue that they received a non-neutral panel stacked with judges who have worked the system to continually get on cases involving same-sex discrimination. Either that, or the gay marriage ban challengers are the luckiest plaintiffs in history.

The study, prepared by emeritus professor of statistics at Texas A&M University, James H. Matis, calculated the odds of Reinhardt and Berzon showing up on this particular panel after previously showing up on a number of gay rights cases. (Out of 11 such cases with "a federal constitutional issue regarding the rights of homosexuals qua homosexuals," at least one of the two judges appeared on six of the panels.)

According to CPM's argument, here are the odds of drawing Berzon/Reinhardt for the SSM three-pack of cases:

  • 60 to 1 (using the most deferential model, which accounts for court assignments, judges' time off, etc.); or
  • 441 to 1 (using a resampling method which ignores anything other than random assignment of judges and calculates the odds of two generic judges landing on so many panels).

Finally, the study also notes that General Order 3.2g allows judges, when unavailable, to swap assignments with other judges "upon mutual agreement and with the approval of the Chief Judge." This was not factored in to the odds.

En Banc Requested

That's a lot of cool numbers, but what's the end game? CPM is requesting en banc review in light of the allegedly non-neutral panel, reports SCOTUSblog.

While couched in deferential language ("with respect and with a keen awareness that questioning the neutrality of the panel's selection could hardly be more serious"), the motion to have the already-issued mandate pulled, and to have a vote for en banc called, throws out some pretty serious accusations of rigging the panel.

The motion states that despite neutral assignment procedures, "in this case, the appearance is unavoidable that those measures have failed." It also criticizes the decision itself, stating that the opinion "does not honestly engage the defense of Nevada's marriage laws."

Will the statistics and heavy accusations lead to an en banc review? We doubt it. But the numbers certainly are interesting.

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