Potter Stewart

“ Clearly, Judge Medina was not a mere interloper, or a usurper. He was, and is, a circuit judge of the United States, bearing a commission signed by the President. Abstractions about 'competence' only becloud the matter. All that has happened is that Judge Medina has exercised the right conferred by Congress (28 U.S.C. § 371 (b) , 28 U.S.C.A. § 371 (b) ) to retire from active service. Nothing in that action, or in what the Court has said concerning the scope of § 46 (c) , renders the judgment of the court below vulnerable to attack. ”

“ En banc courts are the exception, not the rule. They are convened only when extraordinary circumstances exist that call for authoritative consideration and decision by those charged with the administration and development of the law of the circuit.
When such circumstances appear, en banc determinations make 'for more effective judicial administration. Conflicts within a circuit will be avoided. Finality of decision in the circuit courts of appeal will be promoted. ”

“ If any such policy can be thought to be reflected in the en banc statute, it should not be taken as requiring more than that a judge, whose retirement comes at a time when meaningful things in the process of adjudication still remain to be done, must withdraw from further participation. ”

“ Judges Clark and Waterman filed a separate statement in which they expressed the opinion that Judge Medina's participation in the en banc determination was precluded by the plain language of the controlling statute. 265 F.2d 136, 155. Certiorari was granted to consider a question of importance to the Court of Appeals in the administration of their judicial business. ”

“ Those considerations are especially important in view of the fact that in our federal judicial system these courts are the courts of last resort in the run of ordinary cases.' Textile Mills Securities Corp. ”

“ That action was broadly directed to permitting retired circuit judges to sit on en banc courts in instances where they had sat on the panel originally deciding the case. Indeed, the recommendation of the Judicial Conference goes far to dilute the force of the Court's attribution to Congress of a design to leave in the hands of active circuit judges alone the setting of the 'major doctrinal trends' of their courts.↑ In construing a statute far more amenable to a technical approach, we recently rejected an analogous construction of the word 'determined.' United States v. ”