(a) All three judges are relatively indifferent regarding the issues on appeal: Collegial concurrence will likely be the dominant influence on the manner in which the opinion is crafted. (b) One judge has strong opinions on an issue (because of consistency/conviction), and the other two judges are relatively indifferent: The indifferent judges are likely to “go along” with the opinionated judge. (c) Two judges have strong opinions that are incompatible with each other (because of consistency/conviction), and the remaining judge is indifferent: The indifferent judge will likely “go along” with one of the two opinionated judges, and the opinionated judge who is in the minority is likely to dissent. (d) All three judges have strong opinions that are incompatible with each other (because of consistency/conviction): Separate opinions are likely, and there may or may not be a majority opinion. in undertaking the laborious en banc process. A sense of urgency arises infrequently because the consequences of inaction are unlikely to be concrete and immediate for a permanent appellate judge. Rather, the impact of suboptimal decisions from the Federal Circuit is most immediate on the practitioners, who may need to update their case strategies, and on the district judges, who must apply the newly-minted precedents in the first instance, under the threat of reversal. For Federal Circuit judges, the impact of problematic case law on their day-to-day work is considerably attenuated, as they can distinguish it in subsequent cases or effectively disregard it largely without fear of reversal, as review by the en banc court or the Supreme Court is rare. Accordingly, the more immediate concerns, such as appearing consistent, saving face, conviction-voting, maintaining collegiality or détente, and avoiding fruitless battles with colleagues who may serve with them for an indefinite period of time, may take precedence over engaging in a potentially costly analysis. Overcoming the “knowing-doing gap,” then, may require changing the adjudicatory environment in a way that decreases the salience of these concerns.  to four years, which could help guard against the development of the blind spots and inertia associated with the accumulation of expertise and prolonged tenure, respectively, as well as reduce the likelihood of capture by special interests. This proposal resembles a common arrangement within the federal judiciary for staffing tribunals that exercise jurisdiction over specialized subject matter. For example, the Foreign Intelligence Surveillance Court, which reviews applications for orders authorizing electronic surveillance within the United States to obtain foreign intelligence information, is staffed by district judges who serve non-renewable, staggered terms of up to seven years. The Judicial Panel on Multidistrict Litigation (JPML), which is empowered to transfer to a single district multiple civil cases whose pretrial proceedings may benefit from consolidation and coordination, is staffed by a mix of district judges and circuit judges. The Bankruptcy Appellate Panels (BAPs) that exist in some circuits are staffed by bankruptcy trial judges who are appointed for limited terms to hear bankruptcy appeals in three-judge panels. As such, the federal judiciary has a variety of existing models as well as the requisite logistical experience for successfully implementing this proposal. In a similar vein, judicial rotation has been suggested as a way of staffing a potential specialized Article III appeals court for immigration, in which district judges and circuit judges serve two-year terms. Moreover, given that the Federal Circuit, in some respects, behaves not unlike an administrative agency that promulgates substantive rules, it may be appropriate to change its composition regularly, just like the other government agencies involved in the development of patent policy. For example, the U.S. Patent & Trademark Office and the Department of Justice are each headed by political appointees who typically change along with the presidential administration, and the Federal Trade Commission and the International Trade Commission are each led by commissioners who serve staggered terms of limited duration.  One way of combating the curse of expertise at the Federal Circuit may be to replace the experts, i.e., the permanent Federal Circuit judges, with non-experts, i.e., district judges. More specifically, the Federal Circuit could be staffed with district judges who have handled a sufficient number of patent cases so as to have developed a sense of which precedents might be suboptimal, and how new or modified precedents might affect the quality of adjudication. In selecting the district judges to serve on the Federal Circuit, the experience threshold may be based on a variety of metrics such as the number of claim construction orders issued or the average number of patent cases handled per year. That district judges with patent experience may be particularly suitable for the Federal Circuit is suggested by Hinds’s experimental studies demonstrating that those with an intermediate level of knowledge may outperform both experts and novices in anticipating difficulties faced by novices in completing a task. An expert whose learning experience is a distant memory may not be able to recall his initial difficulty with the task as readily as someone who has learned it more recently, while a novice may not have an adequate understanding of the task to make accurate predictions about the behavior of other novices. Applying these lessons to patent case adjudication, it is possible that district judges who have handled multiple patent cases (i.e., the intermediate users of patent case law) may be better than either permanent Federal Circuit judges (i.e., the experts) or district judges who have little or no experience with patent cases (i.e., the novices) at identifying suboptimal precedents, particularly those that have proven difficult for district judges to apply reliably. Hinds’s experiments also suggest that those with an intermediate level of knowledge may be more receptive than experts to debiasing information that could help improve the quality of their decision-making. It is likely then, that compared to the current version of the Federal Circuit that is staffed with “expert” judges, a version of the court that is staffed with non-expert, yet experienced, district judges might give greater consideration to the conflicts memos prepared by the STA, the relevant academic literature, the views of expert agencies such as the Federal Trade Commission, analogous case law from the regional circuits, and feedback from other district judges and practitioners. In addition, experienced district judges may be less influenced by the appellate selection effects that would otherwise provide an inaccurate picture of the relative frequency and severity of certain problems at the district court level. Furthermore, those with an intermediate level of knowledge, i.e., the patent-experienced district judges, may have a greater ability to craft workable precedents than either experts or novices. In another experimental study, Pamela Hinds, along with Michael Patterson and Jeffrey Pfeffer, found that experts tend to use more abstract concepts when imparting specialized, technical information to novices, while beginners tend to use more concrete statements. And while novices instructed by experts demonstrated a greater ability to transfer their knowledge to different, analogous tasks, the novices instructed by beginners learned to complete a specific task more effectively. The results of this experimental study suggest that the pedagogically-optimal mix might be achieved by an individual whose skill level falls in between that of an expert and a beginner, and who, as a result, is more likely to provide an appropriate mix of abstract and concrete guidance. It is possible, then, that opinions authored by patent-experienced district judges—who are neither experts nor beginners—may be more amenable to reliable application at the trial level than those authored by permanent “expert” appellate judges or by district judges who have little substantive experience with patent cases. This is particularly important for patent appeals involving issues (e.g., discovery) that are frequently in contention at the district court level, but are infrequently reviewed on the merits at the appellate level, such that it is critical to get such cases “right” whenever they reach the Federal Circuit because there may be limited opportunities for correcting such precedents in the future. The proposed arrangement whereby district judges craft appellate precedents—that they will later follow under the threat of reversal—could be viewed as a quality-control measure that bears a conceptual resemblance to a software development process known as “eating one’s own dog food” or “dogfooding,” where software developers use internally the products they are developing in order to improve their ability to test and debug them. Examples include Google’s employees internally using AndroidTM products before making them available to the public, and Microsoft internally using the WindowsÆ operating system. This practice tightens and strengthens the software development feedback loop between the developers and the end users because they include the same people. Likewise, the substitution of permanent Federal Circuit judges with district judges could similarly strengthen the “feedback loop” between the appellate and trial levels by having one of the primary consumers of Federal Circuit case law (i.e., district judges) contribute directly to its creation and revision. More generally, district judges who have struggled to apply Federal Circuit precedents may have a better sense than the current group of permanent Federal Circuit judges (most of whom do not have any experience as trial judges) of how existing precedents should be clarified, modified, limited or overruled so that generalist district judges, as well as litigants, may reliably apply them in a manner that improves the overall quality of patent case adjudication.  First, to overcome the consistency/conviction element that promotes over-commitment to prior decisions, changes in personnel may be necessary. As discussed previously, a judge’s reputational investment in his prior positions, the convenience of relying on previous analyses, and/or his deep-seated convictions, may make it difficult for him to change course. Rather than waiting for one or more Federal Circuit judges to perform the unusually self-disciplined act of making a public about-face on an issue and engaging in a labor-intensive analysis to limit or overrule precedents they had authored or voted for in the past, the task of precedent correction should be entrusted to a new set of judges who were not involved in creating or perpetuating the precedents at issue, and, as a result, may be less hesitant to make changes when necessary. To be clear, the consistency/conviction element will not be completely eliminated in a Federal Circuit staffed with rotating district judges. However, its ability to hinder self-correction may be substantially attenuated because the judges will be serving for limited terms. Second, regularly rotating the membership of the Federal Circuit may help prevent the court from reaching an unproductive equilibrium, in which judges fall into predictable patterns of voting that may allow suboptimal precedents to issue and remain uncorrected. Compared to a group of permanent judges with a long history of service together, a group of temporary judges who serve staggered, limited terms might be more amenable to rethinking existing doctrines. Each rotation of temporary judges will introduce new members who may bring fresh perspectives and whose views may not be firm on certain issues. Because a temporary judge may not be fully aware of the ideological or doctrinal alignments of the other temporary judges—and the extent to which their views are set—he may perceive more opportunities (than a permanent Federal Circuit judge) for persuading his colleagues to critically re-evaluate existing case law. The regular rotation of judges may also inhibit the formation of opposing camps that give rise to panel-dependent outcomes and divergent lines of precedent. In addition, judges who serve limited terms may feel freer to “rock the boat” by invoking the labor-intensive en banc procedure because the term-limited nature of their appointments may heighten their sense of purpose—i.e., to improve the adjudication of patent disputes—while decreasing the relative importance of maintaining a predictable adjudicatory equilibrium that allows judges to serve comfortably for an indefinite period of time with the same colleagues. Some, however, may point to the high level of dissent at the Federal Circuit as indicative of a court with diverse views that is frequently engaged in a critical analysis of its precedents. However, the frequency of dissent and separate opinion-writing may be largely a reflection of circuit culture and norms. Moreover, a high dissent rate may indicate a high degree of entrenchment with established camps of judges that have settled into an equilibrium of “agreeing to disagree,” where, on a given panel, neither the majority nor the dissenter perceives a compelling need to temper its views to reach a unanimous result. Perhaps because of the high concentration of patent cases on its docket, the Federal Circuit, by design, might be particularly susceptible to camps developing among its permanent judges, whose views may have become progressively nuanced and divergent as a consequence of the repeated exposure to the same issues over a prolonged period of time. Rather than the rate of dissent, the en banc rate may provide a better sense of whether precedential ossification has set in. The Federal Circuit’s en banc rate is relatively low, which may indicate that, despite the frequency of dissents, the majority of Federal Circuit judges are choosing to avoid a costly, time-consuming endeavor whose outcome may be uncertain. Ultimately then, the high rate of dissents, when coupled with the relatively low rate of taking cases en banc, may be indicative of a court where its members have settled into camps that give rise to multimodal, panel-dependent outcomes, and where the collective will to resolve conflicting precedents may be weak. Third, having district judges serve limited terms may help create a sense of urgency at the Federal Circuit for fixing suboptimal precedents. As previously discussed, permanent judges may view the process of correcting precedents as a labor-intensive endeavor that may be conveniently deferred by defaulting to their prior positions, engaging in forms of collegial concurrence such as “going-along voting” and “live and let live opinion-joining,” and studiously avoiding the en banc process. Unlike a judge with a permanent appointment at the Federal Circuit, a district judge who serves for a limited time knows that after returning to the district court level, she will be required to follow the precedents she created—under the threat of reversal. Accordingly, district judges serving temporarily at the Federal Circuit may feel a heightened need to “get it right” compared to permanent judges, such that they might be more willing to undertake the effort to correct, or prevent the issuance of, suboptimal precedents. At a more general level, the rotation of judges at the Federal Circuit may create a form of de facto percolation through regular changes in personnel, which may be a faster form of percolation involving more judges than increasing the number of circuit courts that hear patent appeals (i.e., percolation through space) or waiting for Supreme Court intervention (i.e., percolation through time). That is, with regular changes in personnel, the process of case law development at the Federal Circuit is likely to be more responsive than it is currently. If a rule is sound, subsequent instantiations of the Federal Circuit with a new slate of district judges will likely maintain it. And if a rule is unsound, subsequent instantiations may be less hesitant to reconsider it and make adjustments. Ultimately, by allowing percolation to occur through regular changes in personnel, Federal Circuit precedents can be developed by individuals from a much wider variety of backgrounds and perspectives than is currently possible, while at the same time preserving a single appellate venue for patent cases.  and, at the same time, must adapt to changes in technology, the benefits associated with a more responsive system for reconsidering and updating precedent, as provided by the judicial rotation proposal, are expected to outweigh the costs associated with any temporary doctrinal fluctuations. Moreover, the current status of the Federal Circuit as “the de facto administrator of the Patent Act” may tilt the cost-benefit analysis in favor of implementing some mechanism for regularly rotating its membership. Whether judicial rotations may be cost-justified for any of the regional circuits is an issue left to future research. The entrenchment of suboptimal precedents may be a more serious problem for the Federal Circuit than the transient doctrinal swings that may result from the court’s attempts to further refine its case law based on fresh insights that new members may bring with each rotation. The development of sound precedent is necessarily an iterative process, and the use of term-limited, rotating judges could cause fluctuations in precedent to occur more frequently within a shorter time period. At the same time, the case law associated with a particular doctrine may be less prone to getting stuck in a suboptimal state. In contrast, with permanent judges, the process of self-correction by the court may be much slower such that suboptimal case law might have the appearance of stability or doctrinal “consistency” because it is not being actively reconsidered, as opposed to enduring on its merits. The potential for doctrinal instability under the rotation proposal could be mitigated, in part, by amending the Federal Circuit’s IOPs. For example, to avoid the potential loss of institutional or historical knowledge regarding Federal Circuit case law when a group of temporary judges rotates off the court, the IOPs could be amended so that the STA would once again provide the judges with reports analyzing every draft precedential opinion for potential conflicts prior to issuance. And, as compared to the permanent Federal Circuit judges, the rotating district judges, as non-experts, might pay closer attention to the STA’s reports. If the proliferation of too many precedential opinions in the course of self-correction is a concern, the IOPs could be changed so that the rate of issuance of precedential opinions decreases, while allowing more non-precedential dispositions and Rule 36 judgments to issue, so as to dampen any precedential whipsawing that might occur from the accelerated percolation resulting from the rotations. Currently, an election to issue a Rule 36 judgment requires panel unanimity, while a majority is required to issue an opinion as nonprecedential. To decrease the proportion of dispositions classified as precedential, the IOPs could be amended so that an opinion may be issued as precedential only if all panel members agree on that designation. Alternatively, the election to make an opinion precedential could be taken away from the panel that decided the case, and instead given to a different panel of judges. Finally, the opposite concern might also arise: whether the district judge rotation proposal could actually make doctrinal change less likely. That is, when in doubt, might the district judges be inclined to defer to an existing body of law created by “the experts”? It is possible that this inclination could exist at the very beginning of the tenure of a district judge who has rotated onto the Federal Circuit. However, this inclination may be tempered as the district judge settles into his appellate role and delves into the body of Federal Circuit case law on a regular basis. Overall, the potential for undue deference to prior case law is likely to be weak because the district judges who are selected for the rotations, while not experts, are not novices either. Moreover, based on their experiences with adjudicating patent cases at the trial level, the district judges may relish the opportunity to revisit those doctrines have been troublesome for them, especially because they will have to live with the precedents they create when their rotations end.  However, as suggested by Nard & Duffy’s proposal to expand the number of circuit courts to hear patent appeals to allow inter-circuit percolation, and Judge Wood’s endorsement thereof, patent law expertise at the appellate level may not be nearly as important as ensuring that robust mechanisms exist to facilitate reconsideration and correction of case law. The Federal Circuit’s susceptibility to expertise-induced blind spots and lack of receptivity to debiasing information—combined with the institutional inertia arising from lifetime appointments—may well result in suboptimal case law that is likely to endure. The tradeoff then, is whether an expert court that might be difficult to correct is preferable to a non-expert court that might be easier to correct. In view of the unique requirements of patent case law—namely, uniformity and the ability to adapt to changing technologies—the latter option might be preferable. In addition, staffing a “specialized court” with a group of generalist district judges may check the tendency of that court to develop case law that unnecessarily deviates from the mainstream practice of the regional circuits. Permanent Federal Circuit judges may see themselves as “boosters” of patent law, such that the appropriate patentee-public balance in patent case law might be better maintained by a Federal Circuit that is staffed by temporary judges whose reputations are not solely dependent on their work at that court, and, as a result, would be less inclined to develop precedents in a direction that would enhance the court’s influence at the expense of other governmental institutions and the public. Furthermore, because the generalized nature of their dockets regularly exposes district judges to issues that lie at the federal-state court interface, they may be more sensitive to the need to strike an appropriate jurisdictional balance between federal and state courts in cases involving state law claims that raise issues related to patent law. Finally, whether someone is appointed to a circuit court versus a district court is less a function of qualifications and more a function of politics and chance. Another concern with staffing the Federal Circuit with only district judges is that they might be reluctant to reverse a fellow district judge on appeal based on sympathy or other reasons unrelated to the merits. However, this may not be a substantial risk: according to one study of appeals terminated in the federal appellate courts from 1987 to 1992, the reversal rate for appeals from district courts where the panel included a district judge sitting by designation (18.54%) was indistinguishable from that of all panels in appeals originating from the district courts (18.57%). It is possible, however, that the similarity in reversal rates might be partially attributable to the designated district judges deferring to the appellate judges on their panels, such that a panel comprised of only district judges might feel freer to affirm more often. To decrease the likelihood of undeserved affirmances under the judicial rotation proposal, the cases assigned to a panel should not include any appeal from the home district of any panel member. Also, if the identity of the author is masked through the issuance of a “per curiam” opinion, a district judge might feel more comfortable authoring an opinion reversing a fellow district judge. To the extent that the affirmance rate might increase by a nontrivial margin in a district-judge-only Federal Circuit, it could reflect a salutary development that counterbalances the previous expansion of the number of issues subject to de novo review. In addition to the standard for reviewing claim construction, the Federal Circuit recently extended de novo review to the objective prong of the willfulness standard, and the objective reasonableness determination for an exceptional case under 35 U.S.C. § 285. If the Federal Circuit were staffed by only district judges, the court may be less amenable to expanding the number of issues that are reviewed de novo and may even reverse this trend, which could ultimately bring greater stability—not less—in the adjudication of certain issues on appeal. Another potential objection to staffing an appellate court with only district judges is that they are allegedly less comfortable than circuit judges with the type of group decision-making that takes place at the appellate level, as opposed to the solitary decision-making process at the trial level. This claim appears weak in light of the frequency with which district judges sit by designation on, or are elevated to, appellate courts. As for including appellate judges from the regional circuits in the Federal Circuit rotation, it would likely make the proposal less effective, as very few regional circuit judges have any experience with patent cases (let alone an intermediate level of experience that is recommended for the rotations). At the same time, regional circuit judges may be less accountable because they are unlikely to be in a position to apply the precedents they create at the Federal Circuit as binding authority when they return to their home courts. In addition, the hierarchical difference between the regional circuit judges and the district judges might adversely affect the district judges’ independence of judgment required to critically re-evaluate precedents. While the analysis of the district judge rotation proposal has focused primarily on its potential impact on the Federal Circuit’s patent case law, the effect of the rotations on the non-patent portions of the Federal Circuit’s docket is expected to be approximately neutral. Much of the Federal Circuit’s non-patent docket originates from agency tribunals, the Court of Federal Claims, and the Court of International Trade. The variety of cases that a generalist district judge typically handles is far greater than the Federal Circuit docket—in terms of the types of government agencies, tribunals, parties, and issues,—such that it is unlikely that the rotating judges will have difficulty with, or materially affect the quality of, the adjudication of the Federal Circuit’s non-patent docket, particularly when the scope of appellate review is often restricted in such cases.  Jimmie Reyna, Evan Wallach, Richard Taranto, Raymond Chen, and Todd Hughes. The new judges constitute half of the twelve authorized active judgeships. Based on this turnover, might the culture of the Federal Circuit change so that it is more amenable to timely self-correction? In drawing an analogy to the assimilation of immigrants, Rochelle Dreyfuss suggests that it might take three generations of Federal Circuit judges to shed the defensive culture of the Markey-era and internalize the general norms of the rest of the federal judiciary. But the behavioral elements that impair timely self-correction will likely remain, as they are grounded not in the culture of the court, but rather in the organizational structure based on the types of individuals involved (i.e., experts) and their operating environment (i.e., working with colleagues having lifetime appointments). Others may wonder if changes to the Federal Circuit’s IOPs may be sufficient to improve the court’s ability to timely address suboptimal case law, so as to obviate the need for structural changes. For example, the impact of the consistency/conviction element on the ability of a court to reconsider precedent may be weakened by revising the IOPs so that the panel judges are excluded from participating in the en banc consideration of an opinion issued by their panel. In addition, if all opinions were issued “per curiam,” it may better focus the panel judges’ attention on reaching the right result by decreasing the influence of considerations related to the authoring judge’s need to publicly save face or seek vindication of prior positions. Furthermore, the IOPs could be amended to make it more difficult to designate opinions as precedential (e.g., requiring a majority vote of non-panel judges) in order to prevent the proliferation of divergent or suboptimal precedents. To further enhance intra-circuit percolation, the IOPs could be changed so that the presiding judge on the merits panel would be assigned randomly, without regard to seniority, to ensure that the authorship of significant opinions is as varied as possible. And finally, the STA’s review of all precedential opinions could be reinstated. While the current version of the Federal Circuit could, in theory, implement these suggested changes to its internal procedures, they are highly unlikely to be adopted. This is because such changes might be perceived as impairing the ability of individual judges to fully participate in the development of precedents (especially if their ability to participate on an en banc panel is restricted) and to establish a legacy (especially if they cannot be identified as the author of a specific opinion), which may be unacceptable to those permanent Federal Circuit judges who, unlike the district judges on temporary rotations, may have their judicial identities closely—and exclusively—associated with the Federal Circuit. And, just as the STA’s conflict memos were scaled back, the court may change its IOPs at any time, so any changes may not last. Finally, some may object to the proposal on the ground that a less radical option exists: have more district judges sit by designation at the Federal Circuit and vice versa. However, increased designation practice may not be an adequate substitute. Having district judges sit by designation more often at the Federal Circuit might increase awareness among the Federal Circuit judges that certain precedents are problematic. However, visiting judges do not participate in the Federal Circuit’s en banc process, and the additional insights supplied by visiting district judges may have little effect on closing the knowing-doing gap. As discussed previously, an environment that is conducive to self-correction is not one in which an unproductive equilibrium exists with predictable voting patterns, but rather one in which the judges share a sense of urgency in undertaking the effort to reconsider and take corrective action on problematic case law. The current adjudicatory environment of the Federal Circuit that is maintained by the permanent judges is unlikely to be materially changed by the district judges who sit by designation, as the latter will be both outnumbered and outranked by the former. Staffing panels with a mix of judges at different levels of the judicial hierarchy may result in district judges subconsciously deferring to the circuit judges, such that the former may dissent less often, while the latter may subconsciously assert their superior position in the hierarchy. Indeed, the hierarchical disparity between permanent Federal Circuit judges and visiting district judges may adversely affect the latter’s independence of judgment necessary to engage the other judges in a critical, rigorous analysis directed to reconsidering existing precedents. Conversely, if Federal Circuit judges were to sit by designation in the district courts more often, it is possible that it could improve their understanding of the impact of Federal Circuit case law at the district court level. However, a Federal Circuit judge may need to spend at least a year at a district court handling a full district court docket in order to meaningfully experience the challenges district judges face in managing patent cases with the rest of their caseload. In this regard, the current practice whereby some circuit judges preside over cherry-picked district court patent cases is wholly inadequate. Furthermore, it is unlikely that a critical mass of Federal Circuit judges will sit by designation at the district court level because they may have neither the interest nor the necessary skill set (e.g., greater familiarity with trial practice, enhanced project management skills, and facility with a wide range of subject matter, especially criminal procedure). But even if every Federal Circuit judge were to sit by designation at the district court level, there is no guarantee that they will use their newly-acquired knowledge to correct suboptimal precedents when they return to the Federal Circuit—the knowing-doing gap will likely exist so long as the environment of the Federal Circuit remains one where a group of experts serve terms of indefinite duration.  the precedents issued by the Federal Circuit must strike the proper balance between private and public interests. And if the precedents become obsolete, unworkable, or are otherwise suboptimal, the Federal Circuit should take prompt remedial measures. In response to concerns about the Federal Circuit’s limited ability to experiment and adapt its precedents to changing needs, this Article explores the cognitive and situational considerations that may underlie the Federal Circuit’s inability to correct its precedents in a timely manner, and proposes a solution. By staffing the Federal Circuit with a rotating group of district judges, the blind spots and institutional inertia arising from the curse of expertise and the knowing-doing gap, respectively, could be mitigated. Otherwise, by maintaining the present staffing arrangement whereby a group of judges are permanently assigned to the Federal Circuit, timely self-correction may occur only if the judges behave in ways that are unusually self-aware and self-disciplined.
Perhaps the most effective antidote against profligate en bancing is the very human desire of judges to coexist in peace. Apart from the inordinate demands on the time and resources of judges, en bancs heighten tensions on the court. No judge likes to have her opinions en banced, and although she may expect it from those with whom she frequently disagrees, she may resent it from usual allies. Some judges do indeed regard a vote in favor of en bancing their cases as tantamount to betrayal. Especially on a divided court, we are thus tempted occasionally to rationalize voting against an en banc of one of our colleagues’s opinions for purposes of collegiality (“It’s not that important, I can distinguish the opinion in the future if I have to”).Patricia M. Wald, Changing Course: The Use of Precedent in the District of Columbia Circuit, 34 Clev. St. L. Rev. 477, 488 (1986) [hereinafter Wald, Changing Course] (emphases in original); see also Douglas H. Ginsburg & Brian M. Boynton, The Court En Banc: 1991-2002, 70 Geo. Wash. L. Rev. 259, 260 (2002) (observing that decline in D.C. Circuit’s en banc rate may be attributable in part to collegiality and judges’ “keen[ ] sense of the high costs and uncertain benefits of rehearing a case en banc”).
Real friendships are rare on the court. Heartfelt differences of philosophy and ideology militate against them. Powerful egos often impede them, even among philosophical allies. Judges are like monks without the unifying bonds of a common faith. They are consigned to one another’s company for life. They cannot speak about their work outside the walls of the monastery. Lingering resentments and hostilities must be kept under wraps—and a bottle of Mylanta at hand—to preserve the image of a court that is impartial and neutral enough to decide other people’s disputes.Patricia M. Wald, Some Real-Life Observations About Judging, 26 Ind. L. Rev. 173, 179 (1992).
Even one dissident judge can impose upon me the cost, in time and aggravation, of having to respond to a dissenting opinion — and the further risk that I will lose my majority in the panel (or upon rehearing en banc). . . . [O]n the court the concurrence of a colleague is the coin of the realm.Douglas H. Ginsburg & Donald Falk, The Court En Banc: 1981-1990, 59 Geo. Wash. L. Rev. 1008, 1017 (1991).
[Judges] rarely level with the public—and not always with themselves—concerning the seamier side of the judicial process. This is the side that includes the unprincipled compromises and petty jealousies and rivalries that accompany collegial decision making . . .Richard A. Posner, The Problems of Jurisprudence 190 (1990).