It aint over until it’s over. And it aint over.

The Ninth Circuit issued an order this afternoon asking the parties in Washington v. Trump to file briefs on whether the case should be reheard en banc:

A judge on this Court has made a sua sponte request that a vote be taken as to whether the order issued by the three judge motions panel on February 9, 2017, should be reconsidered en banc. A sua sponte en banc call having been made, the parties are instructed to file simultaneous briefs setting forth their respective positions on whether this matter should be reconsidered en banc. The briefs should be filed on or before 11:00 a.m., Pacific time, on Thursday, February 16. The supplemental briefs shall be filed electronically and consist of no more than 14,000 words. See General Order 5.4(c)(3).

What’s rehearhing en banc? I’m glad you asked. Typically, cases are decided by three-judge panels. In an en banc proceeding, the entire court (in theory) decides the case again. But because the Ninth Circuit is so large, not every judge would actually sit on the en banc panel. Rather, only 11 active judges would rehear the case. One of those judges is guaranteed to be Chief Judge Thomas. The Chief is always on the en banc panel.

A “sua sponte” request means neither party asked the court to rehear the case en banc. Rather, at least one -- and perhaps only one -- active judge on the court asked that all of the active judges on the Ninth Circuit vote on whether to rehear the case. Even though only 11 judges would sit on the en banc panel, all active judges vote whether the case is reheard en banc. The judges on the panel are not guaranteed spots on the en banc panel.

The fact that there has been an en banc call almost certainly means we will hear from other judges on the court. Even if the request is voted down, judges can write dissents from the denial of en banc review (sometimes referred to as “dissentals”). That means at least some conservative judges will likely say something in writing.