Dan Schmutter, yesterday:
Folks, I say this with the utmost love and affection, but it has to be said.
Please, please stop trying to predict when the Third Circuit will rule. You’re just giving yourselves agita.
It is literally impossible to make any such predictions. Every case is unique.
Some folks are saying " I heard the Third Circuit decides en banc cases within 3 months." Not true.
Some folks are gauging predictions based on other en banc cases.
Some folks are tracking the status and timing of the court’s caseload.
None of that is meaningful. Every case is unique. They don’t release opinions in order. They don’t work according to a fixed schedule.
Mostly likely there are quite a few opinions circulating among the judges right now.
This is what happened in the Binderup case:
AMBRO, Circuit Judge, announced the judgments of the Court and delivered the opinion for a unanimous Court with respect to Parts I and II, an opinion with respect to Parts III.A, III.B, III.C.1, III.C.2, and III.C.3.a, in which FUENTES,SMITH, GREENAWAY, Jr., VANASKIE, KRAUSE, and ROTH, Circuit Judges, joined, and an opinion with respect to Parts III.C.3.b, III.D, and IV, in which SMITH and GREENAWAY, Jr., Circuit Judges, joined. FUENTES, Circuit Judge, filed an opinion concurring in part, dissenting in part, and dissenting from the judgments, in which McKEE, Chief Judge, VANASKIE, SHWARTZ, KRAUSE, RESTREPO, and ROTH, Circuit Judges, joined. HARDIMAN, Circuit Judge, filed an opinion concurring in part and concurring in the judgments, in which FISHER, CHAGARES, JORDAN, and NYGAARD, Circuit Judges, joined.
See if you can make sense of that.
The first time around in Range, there was a majority opinion, two concurrences, and two dissents.
The second time around in Range, there was a majority opinion, four concurrences, and one dissent.
Who knows how many opinions are being written in our two cases?
All of those opinions have to be written, circulated, commented on, edited, recirculated, commented on again, edited again, and finalized.
All of that takes time, and yes they have other cases to work on, too.
Then account for the fact that there are two pending Supreme Court cases that will be decided no later than June, including one (Wolford), in which the Court will be deciding one of the exact same issues that we have in Koons/Siegel (the private property rule).
If you were a judge would you go out on a limb and release an opinion when you know the Supreme Court will, in a matter of months, be deciding either the exact issue before you or at least two cases that will address the same part of the Constitution you are dealing with?
Doesn’t make a lot of sense. Makes more sense to wait in case you need to entirely change your opinion or perhaps tweak it slightly to be consistent with the Supreme Court. It makes no sense to release an opinion and then find out just a few months later that you were wrong.
So, all this is to say that there is no way to predict timing, None.
Doesn’t make much sense driving yourselves nuts over this. It’ll all get decided.