Coalition for the Protection of Marriage Accuses 9th Circuit of "Panel-Packing"

In a cert petition filed on April 9, the anti-same-sex marriage group Coalition for the Protection of Marriage accuses the Ninth Circuit of "panel-packing" in order to tip the scales in favor of challengers of Nevada's prohibition on the recognition of same-sex marriage. The coalition defines "panel-packing" as "assigning a case to a three-judge panel of particular judges with the intent of influencing the outcome." Pet. at 27. 

Here are the facts the Coalition alleges to substantiate its panel-packing challenge (Pet. at 29):

From January 1, 2010, to October 13, 2014, the Ninth Circuit had assigned to merits panels eleven cases involving the intersection of federal constitutional rights and sexual orientation law (the “Relevant Cases”), as were listed and described in a table included among the exhibits to the Petition (Dkt. No. 274-2 at 6-10). Judge Berzon was on five of those panels. Dkt. No. 274-2 at p. 6. Judge Reinhardt had the next highest number, with four panel assignments. Id. With two, Judges Schroeder, Thomas, and Alarcón are the only other judges with more than one assignment. Id. Seventeen judges, including District Judge Bennett, received one assignment. Id. Eighteen of the judges with active status during any part of the relevant time period received none. 

A serious statistical discrepancy indeed! 

(Because it will no doubt need saying, the previous line was uttered sarcastically. The Coalition does cite,however, a statistician who claims the odds of these panel make-ups is 441-to-1. See Pet. App. at 191a.)

The Coalition goes on to argue that "Careful statistical analysis indicates a high likelihood that the number of Relevant cases assigned to Judges Reinhardt and Berzon, including this and the Hawaii and Idaho marriage cases (which the petition treated as one for these purposes), did not result from a neutral judge assignment process." (Pet. at 29). It also cites the wisdom of the "reasonable person," who simply wouldn't believe that gay-marriage friendly judges could have been so fortunate to find themselves on 5 panels hearing gay-marriage cases (Pet. at 31):

The appearance of unfairness is not a close question here. Even without the aid of professional statisticians, a reasonable person will immediately sense that something is amiss when one judge out of more than thirty is assigned over a four and one-half year period to five of a circuit’s eleven Relevant Cases involving a particular issue, and when both that Judge and another Judge with respect to whom assignment disparities also exist, are assigned to the most momentous of those cases, here involving same-sex marriage. That sense will deepen on realizing that eighteen of the judges with active status during any part of the relevant time period were assigned to none of the eleven Relevant Cases. That sense will deepen even further because of the appearance, arising from widely shared public perceptions, that Judges Reinhardt and Berzon’s presence on the panel favored one side over the other.

It's not the first time the Coalition has raised this argument. It did so in its petition for rehearing en banc back in 2014. Chief Judge Kozinski, for his part, has denied that any type of panel-packing occurred, as did the Ninth Circuit's top administrator. 

Remarkably, the Coalition fails to cite to a recent law review article by respected professors Adam Chilton (Chicago) and Marin Levy (Duke), Challenging the Randomness of Panel Assignments in the Federal Courts of Appeals. The article was quite math-y and involved graphs. In short, it was well beyond my ken. But I ferreted out one of the relevant conclusions: "there is evidence that the ideological balance of panels is non-random in four circuits: the D.C. Circuit, the Second Circuit, the Eight Circuit, and the Ninth Circuit." At 31. 

Either way, the Coalition's position here sounds like sour grapes.