Within the Scope

Blogging on Administrative Law and the Public Sector

Sunday, August 31, 2008

If You Only Read a Handful of Articles This Year … Read These ….

In the latest issue of the Minnesota State Bar Association’s Public Law Newsletter, published on Friday, I included a summary of some important research coming out of the University of Chicago.

Relying upon a database of 4,500 Court of Appeals decisions that have been issued since 1995, Professor Cass Sunstein and his team argue that while the ideology of judges has an important effect on the outcome of decided cases, the ideology of a judge’s colleagues is a better predictor of a judge’s vote in a particular proceeding than the judge’s own views. Sunstein asserts that this is because dissenting opinions on a three-judge panel are likely to be both futile and burdensome to produce – what Sunstein calls “a difficult combination....” As he writes:
Dissenting opinions might also cause a degree of tension among judges, a particular problem in light of the fact that judges must work together for many years. According to informal lore, a kind of implicit bargain is struck within many courts of appeals, in the form of, “I won’t dissent from your opinions if you won’t dissent from mine, at least not unless the disagreement is very great.” All of these points help to account for the great power of “the ideology of one’s colleagues” in producing judicial votes.
Comparing actual panel votes against a stereotypically liberal position (and the numbers likewise work in reverse if you were to measure panel members against the stereotypical conservative position), Sunstein asserts that the greater the concentrations there are of particular types of appointees on an appellate panel (whether Republican or Democrat) the greater the movement there will be away from a neutral position. Thus, the more unified panels of Republican appointees there are, the more conservative results; the more unified panels of Democratic appointees there are, the more liberal the outcomes.

In fact, Sunstein and his authors make the claim that, if anything, the effects that they detail are understated. The authors claim that experienced appellate lawyers already have an informal version of their findings in their head; and that when advocates are facing unified panels of judges with an ideologically opposite point of view – those cases settle. The authors argue that if every appeal went all of the way through the process to a written decision, the effects that they document would be larger.

Judge Richard Posner, of the U.S. Court of Appeals for the Seventh Circuit – someone who certainly knows about the behavior of appellate court judges – apparently agrees. In his own study, Judge Posner writes about what he calls the “triple-whammy” that occurs when a conservative appointee replaces a more liberal judge. Judge Posner says:

There is thus a triple effect of a change in the ideological composition of a court when a member of the minority bloc on the court (say judges appointed by Democratic Presidents) is replaced by a member of the majority bloc: The majority becomes larger and therefore the court becomes more conservative irrespective of any group effects; the members of the majority become more conservative than they were when there were fewer of them; and the minority becomes more docile—more likely to go along with the majority than before.
While it may well be that the pressures of collegiality on appellate panels trump the personal ideology of the judges (and readers of these pages may well reasonably differ on whether that is a good thing or a bad thing), but these studies goes on to suggest that these pressures have genuinely substantive impact on the outcomes of cases. In Administrative Law, for example, Sunstein posits that there is a cohort of close cases – perhaps as many as 1 in every 6 – where a decision on whether the agency’s action is sustained or not, is a function of the composition of the appellate panel.

As someone who believes that it is “emphatically the province and duty of the judicial department to say what the law IS,” and that it should be a trifle who the appellate panel members ARE, I find these studies chilling. Are we really at the point where we say: “Tell me who has been assigned to the three-judge panel and I’ll tell you whether or not the agency acted lawfully?”

Whatever your view, this is a literature as to which every lawyer should be familiar.

A copy of my article for the Public Law Newsletter is accessible here. Professor Sunstein’s articles on his findings are accessible here and here. Judge Posner’s study, which points up some of the same findings, using data sets that span back to 1925, is accessible here.

If you only read a handful of scholarly articles this year; be sure to read these.