The denial comes with 55 pages of opinions. Judge Carney wrote a 14-page concurrence in the denial of the petition, and then each of the dissenting judges wrote a separate dissent (each joined by the other dissenters). I haven’t had a chance to read the opinions yet, but I may post some thoughts when I do.
One interesting question is whether the Justice Department will bring this case to the Supreme Court. During his confirmation hearing, Attorney General nominee Jeff Sessions was asked by Senator Hatch if he would pursue a legislative fix to the panel decision. Sessions said he would. That’s a different path than pursuing Supreme Court review, of course, but the case is certainly on the Justice Department’s radar screen. And an evenly divided vote in the 2nd Circuit might get some attention at the Supreme Court.
UPDATE: A reader points out that Judge Lynch took senior status last fall, and therefore he could not vote on the petition for rehearing. The votes from the non-recused judges were as follows:
Katzmann (against rehearing)
Jacobs (for rehearing)
Cabranes (for rehearing)
Raggi (for rehearing)
Hall (against rehearing)
Chin (against rehearing)
Carney (against rehearing — author of the original panel opinion)
Droney (for rehearing)
My apologies for the error.