If you follow the Fourth Circuit, you know that there has been a noticeable increase in the number of en banc cases that the Court has taken, and in those cases there has been some sharp disagreement between the Judges. See, for example, this prior blog post. Or check out this post from our friends at the Maryland Appellate Blog.
Today the full Court denied a motion for emergency injunctive relief relating to the North Carolina State Board of Elections’s extension of its deadline for the receipt of absentee ballots for the current election. Unlike some other recent en banc rulings, this denial had the support of most of the Judges (the Court voted 12-3 to deny the motion). But consistent with other recent en banc rulings, the disagreement on the issue before the Court (and really, how the issue got before the en banc Court) prompted a number of written opinions. Judge Wynn authored an opinion on the denial of the motion, Judge Motz wrote a concurrence, Judges Wilkinson and Agee wrote a dissent with which Judge Niemeyer joined, and Judge Niemeyer wrote his own dissenting opinion as well.
The start of Judge Niemeyer’s dissenting opinion highlights an underlying procedural issue on how this motion came to be decided by the full Court in the first place:
I am pleased to join the dissenting opinion written by the panel majority. This case was originally assigned to a panel, but the work of the panel was hastily preempted by an en banc vote requested by the panel’s dissenter after the panel majority had shared its views but before those views could be published.
As Judge Niemeyer goes on to explain, en banc review can be requested at any time by any member of a panel to which a case is assigned. But he also states that doing so is not the usual custom and practice of the Court — and that as it was done here was “needlessly divisive.” To understand the full story of what transpired, or at least as full of a story as can be gleaned from these published opinions, you should read them. In the meanwhile, though, the question of whether there is “institutional disharmony” on the Court, as one judge last year suggested there was, seems to remain front and center.