Routledge Handbook of Judicial Behavior by Robert M. Howard & Kirk A. Randazzo

Author:Robert M. Howard & Kirk A. Randazzo [Howard, Robert M. & Randazzo, Kirk A.]
Language: eng
Format: epub
ISBN: 9780367873318
Google: QN9AzAEACAAJ
Amazon: B078KJSS12
Barnesnoble: B078KJSS12
Goodreads: 48691162
Publisher: Routledge
Published: 2019-12-10T00:00:00+00:00

Panel Effects in the U.S. Courts of Appeals

On the U.S. Courts of Appeals, cases are generally heard by rotating three-judge panels. Constituted through a random assignment process, the panel will meet for a designated period, often one week, during which the judges hear arguments and typically meet in a private conference to decide the cases argued that day (Bowie, Songer, and Szmer 2014). The conference discussions are usually collegial in tone, and the judges typically reach a consensus during the conference. Once a decision is reached, the most experienced active judge on the panel in the majority typically assigns one of the judges in the majority to write an opinion of the court. The majority opinion author writes an initial opinion draft, which is circulated to the other panelists. Commonly, other panelists will suggest changes to the initial draft; the changes are usually minor and easily incorporated into the opinion (Bowie, Songer, and Szmer 2014). Although it is relatively rare, these processes may result in a judge switching her vote from one supporting the majority to a position that requires writing a separate opinion.

A large body of empirical research consistently finds that judges’ votes are affected by their colleagues on the panel (Kastellec 2007; Revesz 1997; Sunstein 2003; Sunstein et al. 2006). In terms of partisan-based effects, these studies demonstrate that the likelihood of a liberal vote increases with each additional colleague who was appointed by a Democratic president. The presence of women and minority judges on panels also leads to more frequent panel decisions favoring the position of alleged victims of sex and race discrimination (Boyd et al. 2010; Kastellec 2013). In thinking about “mixed” panel composition, whether focused on judge gender, race, or partisanship (i.e., two Democrats sitting with one Republican; two Republicans sitting with one Democrat), one scholar has directed attention to the ways in which the presence of a “counter judge” affects the voting of the panel majority (Kastellec 2007; Kastellec 2013). In one line of inquiry, white, male judges on a panel are influenced in discrimination cases by their minority or female colleagues who have personalized understandings of these issues (Boyd et al. 2010; Kastellec 2013). In terms of partisanship, a counter judge may be expected to raise alternative arguments that have the effect of moderating the views of the panel majority. These effects may be manifested in voting behavior; however, they may also shape deliberative processes and other outputs, including the content of the majority opinion.

Drawing on social psychology and small-group research, one line of inquiry considers how group heterogeneity affects judicial decision-making behavior within the U.S. Courts of Appeals. If a three-judge panel is composed of individuals with similar backgrounds, individuals focus on shared information and are more likely to reach a consensus quickly with narrow rulings (Haire, Moyer, and Treier 2013; Janis 1972). In contrast, when the panel reflects a variety of backgrounds, the give-and-take process of decision making is likely to be heightened with more alternatives considered by the group (Sommers 2006; Sommers, Warp, and Mahoney 2008).

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