Last week, Motorola Mobility LLC petitioned the Supreme Court to review a recent adverse antitrust decision by the Seventh Circuit. In the appeal, Motorola claims that the Seventh Circuit is on the wrong side of a circuit split over the Foreign Trade Antitrust Improvements Act, but—perhaps more interestingly—has asked the Supreme Court to overturn the Seventh Circuit’s allowance of non-random case assignments.

Recently, the Seventh Circuit has garnered headlines for its practice of allowing a motions panel to retain a case for a decision on the merits, sometimes even without briefing and argument. In fact, Motorola alleges, “Seventh Circuit judges hearing applications to permit an interlocutory review regularly assign to themselves the merits of cases they find particularly significant and interesting, rather than leaving the case to the ordinary random assignment process.” Judges Posner and Easterbrook both received personal criticism from Motorola, which specifically claims that “it is common for Judge Posner [on a motions panel] to decide antitrust cases on the merits without further briefing or argument.”

In its petition, Motorola noted that the Seventh Circuit’s practice under its internal rules of allowing motions panels to retain cases is “unique among the circuits.” At least with respect to the Sixth Circuit, the Seventh Circuit’s practice is different.  The Sixth Circuit’s internal operating procedures are designed to ensure transparency of panel assignment (borne in the aftermath of some prominent disputes about this well over a decade ago). In fact, under the Sixth Circuit’s own internal rules: “active judges are assigned to one of the two sitting weeks at random . . .” and that “[j]udges are later assigned to panels during the sitting weeks using an automated routine [based on which active judges have the longest intervals between sitting pairing],” with the goal being “to give every judge the opportunity to sit with as many different colleagues as possible.” Thus, random assignments are the rule of this Circuit, which has not adopted a procedure similar to the Seventh’s. To be sure, there can be certain advantages by allowing a motions panel to retain control over a case as the merits panel, particularly if resolving the motion required substantial investment of judicial time, and efficiency militated in favor of keeping the case with that panel. But having rules that explain the procedure and provide clarity (and consistency) to litigants is critically important.