A court sitting “en banc” or a decision released “en banc” means that the court, usually a court of appeals, has heard the case and reached a decision that includes every judge who currently sits on that court (except those who have been recused or are unable to participate due to illness or similar circumstances). The phrase “en banc” is French, and it means “on the bench” – referring to the place judges usually sit while hearing cases.
Some courts, like the United States Supreme Court and the supreme courts in most U.S. states, always hear decisions en banc. Other courts, like the U.S. Courts of Appeals and many state courts of appeals, usually have cases assigned to a “panel” of three or more judges. Panels contain fewer judges than the court as a whole. The panel judges hear the appeal and give a decision, which is usually explained in a written opinion. Different courts choose which judges sit on the panel in different ways, but many courts assign panel members randomly.
After the panel has heard the appeal and issued its opinion, either party to the appeal – the petitioner who brought the appeal or the respondent who responds to the petitioner’s arguments – may choose to request another hearing “en banc” in most appeals courts. This request asks the court to hear the case again, this time with all of the court’s judges listening to the case. In some courts, the request for a rehearing en banc must be made before one of the parties can take the case to the state’s supreme court; in others, the party can choose whether to request a rehearing en banc or to appeal the case directly to a higher court.
Not all requests for a rehearing en banc are granted. Often, an appeals court will not take the time to rehear a case en banc unless the case includes a question of major importance (like how to interpret a new law), or the panel’s opinion appears to contradict state or federal law or precedent. In the federal courts, the parties may ask the U.S. Supreme Court to hear the case (known as filing a petition for certiorari or “cert”) after a hearing en banc or after a request for a hearing en banc has been turned down.
An appeals court that rehears a case en banc will also usually issue a written opinion. Most of these opinions specify that the court was sitting en banc when it made this decision. Like the U.S. Supreme Court and most state supreme courts, the decisions made by a court of appeals sitting en banc are usually a matter of majority vote. The written opinion of the court will be written by a member of the majority, but judges that concur or dissent are also allowed to write opinions explaining their view of the case. The majority opinion, however, controls.
Some U.S. Courts of Appeals have so many members that federal law allows them to sit en banc even if not every member of the court is present. For instance, the U.S. Court of Appeals for the Ninth Circuit has a total of 29 judges, but this court can sit “en banc” with only 11 judges hearing the case. The U.S. Court of Appeals for the Fifth Circuit, which has 17 judges, is also eligible to create a smaller “en banc” panel. Since an appeals court can only overrule a decision made by a panel if the court is sitting en banc, knowing when this designation applies is an important part of appellate procedure.