En Banc Review

Federal courts of appeals ordinarily decide cases in panels of three judges, but a decision may be reheard by the full court, sitting en banc, from the French for on the bench. In Textile Mills Securities Corp. v. Commissioner in 1941, the Supreme Court held that the courts of appeals could sit en banc, and Congress codified the practice in 1948. Federal Rule of Appellate Procedure 40 allows rehearing en banc when it is needed to maintain uniformity of the court's decisions or the case involves a question of exceptional importance.

A party may petition for rehearing en banc, or a judge may call for a vote, and rehearing is granted if a majority of the court's active judges agree. If it is granted, the panel decision is usually vacated, and the full court hears new briefing and argument and issues a new decision. Because of its size, the Ninth Circuit, with 29 active judgeships, uses a limited en banc court of 11 judges. En banc rehearing is rare, granted in well under 1 percent of appeals, and senior judges generally do not vote on whether to rehear a case.

En banc courts have decided major cases, such as the Federal Circuit's 7-4 ruling on August 29, 2025, that emergency powers did not authorize broad tariffs, a result the Supreme Court upheld in February 2026. Because the full court reflects the overall makeup of a circuit, en banc review can reverse panels with a different ideological balance, and votes to rehear often divide judges along the lines of the presidents who appointed them. Supporters say en banc review keeps a circuit's law consistent and corrects serious errors, while critics say it adds delay and that the Supreme Court is the proper place to resolve disputes.