I am intrigued, as are others on this list, by the following statement of
the en banc court:

"That a panel of this court unanimously concluded the [equal protection]
claim had merit provides evidence that the argument is one over which
reasonable jurists may differ."

It seems to me that a panel's unanimous decision provides no evidence, by
itself, that a claim is open to reasonable dispute.  On the contrary, a
unanimous panel decision would ordinarily indicate the opposite (if there
was any indication at all).  A panel decision producing no internal
disagreement provides evidence of reasonable dispute only if the panel
decision is compared to another, contrary determination by someone else.

There are two obvious candidates for the implicit comparison: the district
court decision and the views of the judges on the en banc court.  A third
possibility (though perhaps less likely because of the use of "jurists") is
a recognition of the general public attention to the case and the
discussion about the case by members of the legal community and the
interested public.  While the district court might be more likely to be
compared to the panel, such a comparison could easily have been drawn
explicitly: "That a panel of this court reversed a contrary determination
by the district court provides evidence ..."

Do the other members of the list believe the en banc court was referring to
some of its own members as the reasonable jurists believing that there is
no viable equal protection claim here (despite the holding formally not
addressing the point)?

-- 
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlaw.blogspot.com