In the grand scheme of the law, Planned Parenthood Association of Utah v. Herbert was not an important case. It turned primarily on a factual dispute over whether Utah Gov. Gary Herbert (R) had an unconstitutional motive when he cut off funding to Utah’s Planned Parenthood affiliate, as well as another dispute over whether a three-judge panel that temporarily restored that funding misread a trial judge’s opinion.
It was a case that turned upon, in the language that lawyers use, a “question of fact,” rather than on a question of law that could have major implications for future cases. In other words, if the judges hearing this case were wrong about the facts (or about what a specific trial opinion said), while that would obviously have very serious implications for Planned Parenthood, it wouldn’t have any implications for future cases.
And yet Judge Neil Gorsuch, President Trump’s nominee to the Supreme Court, went to war over this legally insignificant, fact-bound decision.
The overwhelming majority of federal appeals court cases are heard by randomly drawn three-judge panels. In rare cases, however, an entire appeals court will hear a case in what is known as an “en banc” proceeding. Again, these proceedings are rare. In 2010, “en banc decisions accounted for only 0.146 percent of the cases decided by the federal circuit courts.”
Under the Federal Rules of Appellate Procedure, en banc hearings are “not favored” and typically are not convened unless “en banc consideration is necessary to secure or maintain uniformity of the court’s decisions” or “the proceeding involves a question of exceptional importance.” That is, they are typically reserved to cases where different opinions within the same court reach differing results on the same legal question, or where a case presents an important legal question with significant consequences.
En banc hearings are typically not used to correct alleged errors of fact that have no implications beyond the one case.
And yet Gorsuch didn’t simply try to get his court to convene an en banc hearing in the Planned Parenthood case. The public record shows that a member of his court ordered a poll of the court’s members to determine if such a hearing should take place, despite the fact that no party asked for such a poll. That’s an extraordinarily unusual action for a judge to take. Typically, courts only hear cases en banc if the losing party asks them to.
As the conservative legal writer Ed Whelan notes, since Gorsuch eventually wrote the decision dissenting from his court’s decision not to en banc this case, “it’s not climbing out on a limb to surmise that it was Gorsuch” who sought an en banc hearing in the first place.
So why does it matter that Gorsuch tried to invoke such an unusual process in a legally very minor (if politically fraught) case? It matters because it’s hard to imagine a good legal reason why he would do so. En banc hearings simply aren’t used for these kinds of cases.
But Gorsuch’s actions make perfect sense if he is an anti-abortion hardliner who wanted to cut off funds to a leading abortion provider and was willing to bend the rules to do so.