The Seventh Circuit is very serious about treating its panel decisions as the “law of the court” unless and until they are overruled by the en banc court or a higher authority. Hence, its Circuit Rule 40(e) requires a panel that contemplates issuing an opinion that would overrule a prior decision or create a conflict between or among circuits to circulate it among the active members of the court, affording a majority the chance to order the case reheard en banc.
A couple of months ago, we discussed Rubin v. Islamic Republic of Iran, the case in which the opinion of a Seventh Circuit panel arguably overruled a prior Seventh Circuit decision and created a circuit split, either of which would normally have precluded its publication without complying with Rule 40(e). But five of the nine active judges recused themselves from the case, so there could not be a majority to vote to rehear en banc and the panel decision was published as the law of the circuit. We mentioned this case again earlier this month, when the Supreme Court asked for the views of the Acting Solicitor General on whether the Court should grant certiorari.
Now another unusual sequence of events throws further light on the court’s commitment to following the law laid down by its first panel to decide an issue.