On Wednesday, the en banc Fifth Circuit decided Environment Texas Citizen Lobby v. ExxonMobil. The procedural posture of this case resides in the ninth circle of Dante's Inferno. I won't even try to explain it here. Instead, I will try to make sense of the extremely unusual split.
Reuters reported the case as a 9-8 split. Not quite.
The case was heard before seventeen members of the en banc court: Elrod, Davis, Jones, Smith, Stewart, Richman, Southwick, Haynes, Graves, Higginson, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson, and Douglas. (Judge Ramirez joined the court after the case was submitted so she did not participate). Simple math would suggest that a majority of a seventeen member court would require nine votes. But there is no actual nine member majority.
