JUDGING ON A COLLEGIAL COURT: INFLUENCES ON APPELLATE DECISION MAKING

Vol. 16 No. 6 (June, 2006) pp.475-478

JUDGING ON A COLLEGIAL COURT: INFLUENCES ON APPELLATE DECISION MAKING, by Virginia A. Hettinger, Stefanie A. Lindquist, and Wendy L. Martinek. Charlottesville: University of Virginia Press, 2006. 192pp. Cloth $39.50. ISBN: 0-8139-2518-5.

Reviewed by Richard L. Pacelle, Jr., Georgia Southern University. Email: rpacelle [at] georgiasouthern.edu

One of the central questions in the study of public law involves the determinants of judicial decision making. As a research topic, decision making combines normative, empirical, and methodological considerations. The preponderance of this literature has focused on decision making at the United States Supreme Court level. The Supreme Court is visible (as are the individual justices), most of its decisions are published, it has significant discretion over the cases it wishes to accept, and it deals with the most important political, social, and economic issues of the day. By contrast, it has been much more difficult to assess variation in decision making in the U.S. Courts of Appeals in part because their decisions are dominated by apparent collegiality.

Early studies of the Courts of Appeals were typically filtered through the lens of the Supreme Court. Analysts studied the Supreme Court and the justices and used their findings to generate the propositions that were used to examine the lower federal courts and its members. The fit was far from perfect. The study of the Courts of Appeals followed the predictable patterns of development for a research area. It began in a descriptive vein and gradually became increasingly systematic. Sheldon Goldman (1967) and J. Woodford Howard (1981) were among the pioneers who ran the first empirical tests and developed many of the propositions that today’s students of the Courts of Appeals still use. But there was one recurrent problem: the availability of reliable measures, particularly for the judges. The creation of the Court of Appeals Data Set by Donald Songer and his colleagues was the real boon for this field of study. Virginia Hettinger, Stefanie Lindquist, and Wendy Martinek have added the latest work to this growing literature, and their collective effort represents a major contribution. Using the Songer data set, they are able to tap a full lode of cases and decisions to examine a number of questions and test a variety of models.

Despite its relative brevity, the book is theoretically rich and methodologically sophisticated. Hettinger, Lindquist, and Martinek have combed the existing literature to develop elaborate models of horizontal (disagreements within the particular Court of Appeals panels) and vertical (disagreements with the District Court) dissensus. The authors examine the influence of attitudinal, strategic, institutional, and legal factors in their attempts to glean the reasons that judges on the Courts of Appeals dissent, concur, and reverse the decisions of lower courts. The authors have developed and utilized a number of superior measures for testing their models. In addition to [*476] the traditional variables, Hettinger, Lindquist, and Martinek include variables to measure the qualifications of the judges, the number of amicus briefs, relative experience of the litigants, complexity of the litigation, and the size and levels of consensus on the various circuits. Their measures of the distance between members of the circuit panels and between the Supreme Court and the Courts of Appeals are more precise than those used in previous studies, and thus the findings carry more weight. The results reveal the conditional effects of a number of different factors and at least a few surprises.

As the authors built their theoretical foundation and constructed their models, I feared they might fall prey to the temptation to use the Supreme Court as the foundation for their analysis. The extended discussion of the attitudinal model fed that concern. But the authors were careful to remind readers periodically that they are dealing with the relatively small percentage of cases in which there are dissenting and concurring opinions and trying to explain the unusual cases when consensus is not present. And in the end, the attitudinal variables were only significant in the horizontal dissensus models.

Hettinger, Lindquist, and Martinek develop their arguments and models in carefully and thoughtfully prepared stages, unpeeling one layer of the onion at a time. The authors find that attitudinal factors play the most significant role in the propensity of a judge to dissent or write a concurring opinion. Case factors, in particular civil rights and liberties cases and multi-dimensional cases, also help explain some of the decision to author a separate opinion. Some institutional variables, particularly those that reflect circuit-level norms, are statistically significant and in the predicted direction. By contrast, the strategic variables are found wanting. In addition, the authors find that many of the individual-level differences, such as acclimation effects, do not play an overwhelming role. Rather, they conclude that norms of consensus and collegial relations play a major role in depressing the propensity to author separate opinions.

The examination of vertical dissensus, which is present in almost forty percent of the cases, is also noteworthy. The authors effectively use an ordered probit model to examine the range of Court of Appeals treatment of District Court decisions: from affirm, to reverse in part, to outright reversal. The results here are, according to the authors, “remarkable” (p.117) because they do not reveal a relationship between attitudinal variables and the propensity to reverse a District Court decision. The strategic variables, once again, do not play a significant role in the decision to reverse. Courts of Appeals judges are apparently not motivated by the potential of Supreme Court reversal when making their decisions. Hettinger, Lindquist, and Martinek contrast these findings with studies of state supreme courts (Brace and Hall 1993) and the U.S. Supreme Court (Maltzman, Spriggs, and Wahlbeck 2000), where judges and justices use separate opinions as a strategic resource. In the end, the authors acknowledge that these results are not [*477] that surprising. While justices on the Supreme Court have constant interaction that might permit them to predict their colleagues’ preferences, the workload of Courts of Appeals judges, shifting panels (including senior judges and the occasional district judge), and the need to attend to the courts above and below constrain their ability to think and act too strategically.

The book is well written (except for some heavy redundancy) and accessible to upper level undergraduates and above. The book starts with some interesting vignettes and examples as an effective entry into the analysis. The authors have painstakingly mined the literature, so the first few chapters are a good primer for understanding the role and position of the Courts of Appeals. The models are carefully crafted and the findings are discussed so that even readers without strong methodological backgrounds can understand and interpret the results.

Hettinger, Lindquist, and Martinek start the book with some global issues of both normative and empirical importance. And to their credit, they return to them in the end to measure their findings against broader questions about legal determinacy and the role of the Court of Appeals in the judicial hierarchy and the construction of legal policy. The authors conclude that “the influence of norms and judge characteristics on the expression of dissensus suggests that the formal expression of disagreement among judges is a sociological and political phenomenon as much as it is a behavioral manifestation of legal ambiguity” (p.116). The authors distinguish between the individual act of writing a separate opinion and the collective judgment in reversing or upholding a lower court. This underlines their findings that different factors apparently motivate each behavior. As a consequence, they argue that their results are more reflective of a team model, than a principal-agent model (p.121).

Although it is beyond the scope of the authors’ control, the only negative is that the data end with the 1996 term. With the perceived increase in partisanship and wrangling over federal judicial nominations and a growing literature on the topic of District and Court of Appeals nominations, the question is whether an extended analysis might reveal some newly emerging patterns or reinforce the influence of attitudinal factors. I hope the authors will consider a sequel in another decade or so. This book justifies Hettinger-Lindquist-Martinek II, JUDGING ON COLLEGIAL COURTS: THE NEXT GENERATION.

REFERENCES:

Brace, Paul and Melinda Gann Hall. 1993. “Integrated Models of Dissent.” 55 JOURNAL OF POLITICS 914-935.

Goldman, Sheldon. 1966. “Voting Behavior on the United States Courts of Appeals.” 60 AMERICAN POLITICAL SCIENCE REVIEW 374-383.

Howard, J. Woodford. 1981. COURTS OF APPEALS IN THE FEDERAL JUDICIAL SYSTEM: A STUDY OF THE SECOND, FIFTH, AND DISTRICT OF COLUMBIA CIRCUITS. Princeton: Princeton University Press. [*478]

Maltzman, Forrest; James Spriggs, and Paul Wahlbeck. 2000. CRAFTING LAW ON THE SUPREME COURT: THE COLLEGIAL GAME. New York: Cambridge

University Press.

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