ISSN 1062-7421
Vol. 11 No. 1 (January 2001) pp. 20-24.
CONTINUITY AND CHANGE ON THE UNITED STATES COURTS OF APPEALS by Donald R. Songer, Reginald S. Sheehan and
Susan B. Haire. Ann Arbor: The University of Michigan Press, 2000. 179 pp. Cloth $44.50. ISBN: 0-472-11158-2.
Reviewed by Christopher P. Banks, Department of Political Science, The University of Akron.
Although the study of law and courts in political science is preoccupied with analyses of the Supreme Court of
the United States, scholars increasingly have diverted their attention to the U. S. Courts of Appeals. There is
good reason to do so since the middle tier is often the place of last resort for litigants because the Supreme
Court exercises little supervision over appellate rulings (Howard 1981). Although Howard's COURTS OF APPEALS IN
THE FEDERAL JUDICIAL SYSTEM (1981) has inspired subsequent scholarship on circuit courts, CONTINUITY AND CHANGE
ON THE UNITED STATES COURTS OF APPEALS (2000) is "the first detailed analysis of the United States Courts
of Appeals Data Base, the richest and largest database ever assembled for the study of American courts" (p.
20). The multi-user database, which was principally constructed by Donald Songer with National Science Foundation
funding over several years, consists of a sample of 15,315 published decisions from the circuit courts from 1925
to 1988. Thus, although CONTINUITY AND CHANGE offers some insights as to the role appeals courts play in society,
its strength is that it is a useful primer for those who wish to use the database for further study.
After a brief sketch of the database and the modern function of the intermediate level in chapter 1, the authors
analyze the judicial selection characteristics (chapter 2), judicial business (chapter 3), judicial litigants (chapter
4) and judicial decision-making (chapter 4) of circuit courts. The main theme throughout is the paradox of continuity
and change: whereas circuit courts have adapted to different social, political and legal changes that underscore
their traditional function of error-correction,
circuit courts have also evolved into significant policymakers, especially in civil rights and governmental regulation.
The authors use the contradiction to make sense of what the courts do in terms of their membership, agenda, litigants
and legal outcomes.
Chapter 2 presents a composite of the staffing characteristics that comprise the courts of appeals bench over time.
This portrait reaffirms the conventional view that presidents try to pack the bench and also that appeals courts
mostly consist of white Protestant males. The authors reiterate that the appointing power is constrained by senatorial
courtesy and congressional legislation that controls the number of authorized judgeships. Descriptive statistics
are employed to show, however, that the recent appointments are more diversified in their initial professional
experience, which may be attributable to a more specialized legal environment. By profiling the
circuit membership by partisan appointment, the ideological variation of each is outlined to
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suggest that partisanship is likely to contribute to more circuit court conflict and provide an incentive to forum
shop.
Chapters 3 and 4 introduce social development theory for the purpose of explaining the composition and significance
of the courts of appeals' business and litigants. Although the theory is not fully elaborated, the authors employ
the data to assert that caseloads and litigants are influenced by changes occurring in the broader social context.
By analyzing the subject matter and legal issues of appeals over time, chapter 3 argues that circuit courts more
routinely confront complex constitutional and statutory claims, thus expanding their agenda opportunities to make
policy in civil liberty, regulation and diversity of citizenship (or state law) cases. As a result,
the courts' agenda has increasingly shifted from resolving private economic disputes to deciding public law appeals.
In that social development theory relates to why Americans are litigious, it also assists in discerning who are
active participants in the middle tier. Thus patterns of litigation and the participation (and success) rates of
specific litigants are examined in chapter 4 to suggest that rising caseloads and changes in the external political
and legal environment have impelled individuals (who have less money and less litigation experience than repeat
players) to seek relief in public law disputes increasingly in circuit courts. However, before World War II, businesses
(and to a lesser degree, governments) were the main litigants. Even though appeals courts have become more of a
participatory forum for hearing rights disputes, the authors nonetheless confirm prior studies indicating that
individuals, or the poorly
financed and less experienced "have nots" of litigation, cannot compete with the superior resources and
experience of government, the "haves" of litigation.
Chapter 5 synthesizes these arguments by offering three general conclusions about appellate decisionmaking. First,
although the rate of appellate reversal of district court rulings has remained relatively stable (about 26 to 31
percent), there is more dissensus in and between the circuits over time. Especially there is an upward trend to
conflict, with it becoming more conspicuous after the New Deal (rising from roughly 3 percent in the 1920s to about
9 percent in the 1980s) (p. 105). Second, although partisanship and its impact on judicial voting has varied over
time, it is a factor that principally influences voting patterns after World War II (p.
129). This development may be consistent with the changes in the issue agenda (p. 139). Third, regional variation
among appeals courts did not account for policy differences over time, especially in civil rights and liberties
and criminal cases. Hence "circuits are not good proxies for regions in the study of judicial behavior on
the lower courts" (p. 129). This finding implies that policy conflict is more nationalized in that political
differences are becoming institutionalized on the national
presidential and party level.
As the conclusion tells us, the changes mentioned above must be juxtaposed against a number of stable principles
that help define the role of modern circuit courts. Despite a changing political, legal and social environment
that accentuates increasing caseloads and finite judicial resources, the error correction function of courts of
appeals remains intact, as does their institutional capability to act as the final arbiter of disputes in key areas
of public policy. Although appeals courts have been
increasingly been a forum for
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individual litigants who press complex constitutional and statutory claims, the harsh (and extant) reality remains
that individuals invariably lose against government and corporate litigants that have superior litigation and financial
resources. Although court membership changes over time, and although what judges adjudicate is a bit
more diverse in terms of their specific subject matter in distinct time periods, presidents still try to pack the
courts with appointees who tend to be homogenous in their personal attributes and, when confirmed, generally utilize
partisanship as a means to generate political conflict or favorable policy outcomes.
CONTINUITY AND CHANGE reminds us that the federal circuit courts are political actors that consistently demonstrate
their resilience and significance by adapting to different and conflicting political, legal and social milieus
over time. What is less clear -- and what the book does cannot address because it primarily makes descriptive findings
from a complex, random sample of published opinions -- are the specific reasons why. Presumably because this brief
book is the first look at a large, multi-user dataset, with few exceptions (notably in chapter 5, pp. 123-125,
where a multivariate model is used to test the effects of party and region on judicial voting) the authors do not
use inferential methods to test or explain a number of propositions that arise from, and might account for, variations
or trends in the data. At times, as where the authors identify the inconsistency of finding that "prior to
1946.in both civil rights and liberties and criminal cases, Republicans actually provided marginally greater support
to the liberal position when compared to votes cast by Democrats" (pp. 114, 116), reaching a richer understanding
of why this is so is frustrated by not taking the next analytical step that goes beyond surveying the literature
or conveying what the data describes generally.
A related problem emerges too when the book introduces, but does not sufficiently explain, certain theories that
purport to help support their data analyses. This is the case when social development (chapters 3 and 4) and communications
(chapter 5) theory are respectively singled out as analytical frameworks for understanding the agenda, litigants
or decision-making of circuit courts. Although these theories may be relevant, their explanatory power in relationship
to the data is muted because the discussion of what they represent is underdeveloped throughout the book. Similarly
the authors do not explore how their data corresponds to analogous judicial workload and management statistics
published by the Administrative Office of U. S. Courts; or how their findings are connected to many of the issues
facing modern courts that are often referred to in the legal literature or by the courts themselves.
Juxtaposing their data against the Administrative Office of U. S. Courts statistics may have provided a better
baseline or context to understand some of the workload trends (either generally or by subject matter) they observe
from circuit court published opinions, as when, for instance, they discuss the "big picture" of judicial
business (p. 54) over time or, more specifically, the increasing volume (and problem) of prisoner petitions as
civil rights claims (p. 62). Since, prior to 1997, the
Administrative Office has classified prisoner petitions for both civil rights and conditions of confinement appeals
under the category of "prisoner civil rights" (Miller 2000, p. 5 n. 1), it might have been useful to
shed light on how the Appeals Data Base
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categorizations of similar data (i.e. "prisoner petitions," in civil rights type cases specified in Table
3.5, p. 62) relate or depart from what the government reports.
Likewise, linking their data to the LONG RANGE PLAN FOR THE FEDERAL COURTS (1995) or the FINAL REPORT OF THE COMMISSION
ON STRUCTURAL ALTERNATIVES FOR THE FEDERAL COURTS OF APPEALS (2000) or, indeed, any of the several analogous government
and scholarly studies summarized in Baker's RATIONING JUSTICE ON APPEAL (1994) could have put, for example, the
key issue of whether the caseload crisis negatively affects the delivery of traditional appellate justice -- and
whether intramural or structural reform is necessary) -- in perspective (Although the Final Report of the Commission
probably would not have been available for review by the time of the book's publication, the transcripts of the
hearings the Commission held probably
were since they were posted on the Commission's web-site well in advance as part of a notice and comment period
that preceded the issuance of the final report). Extensive analysis of such an issue is not required, and the topic
legitimately deserves more attention than it received since it is highly relevant to evaluating the role of circuit
courts and whether they can remain viable, geographically-based institutions in an age of increasing legal specialization
and administrative (and statutory) complexity. This policy question assumes even more significance, it seems, in
light of the book's conclusion that nationally-oriented judges (who are operating in a more institutionally dynamic
administrative state) are more apt to be tethered less to regional considerations in deciding certain types of
appeals (pp. 141-143).
With so few books published on the subject more careful attention to placing the courts of appeals in contemporary
focus is certainly worthwhile, especially if it is argued that they are susceptible to a myriad of social, political
and social changes over time. Even so, CONTINUITY AND CHANGE remains a noteworthy book because it ably describes
the scope of the United States Courts of Appeals Data Base to interested scholars and students and offers a fresh
view of the overall significance of circuit court functions and judicial behavior. The book's findings, therefore,
are not only an important affirmation of what we know about circuit courts, but they also are the first step in
giving us some different longitudinal perspectives that allows for comprehending their present significance and,
perhaps, what their role might be in the twenty-first century.
REFERENCES:
Baker, Thomas E. 1994. RATIONING JUSTICE ON APPEAL: THE PROBLEMS OF THE U. S. COURTS OF APPEALS. St. Paul, MN:
West Publishing.
Commission on Structural Alternatives for the Federal Courts of Appeals. 2000. FINAL REPORT OF THE COMMISSION ON
STRUCTURAL ALTERNATIVES FOR THE FEDERAL COURTS OF APPEALS. Washington, D.C.: U. S. Government Printing Office.
Howard, J. Woodford. 1981. COURTS OF APPEALS IN THE FEDERAL JUDICIAL SYSTEM: A STUDY OF THE SECOND, FIFTH AND DISTRICT
OF COLUMBIA CIRCUITS. Princeton, N.J.: Princeton University Press.
Judicial Conference of the United States. 1995. LONG RANGE PLAN FOR THE
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FEDERAL COURTS. Washington, D.C.: Committee on Long Range Planning, Judicial Conference of the United States.
Miller, Marilyn J. 2000. CHANGING TRENDS IN PRISONER PETITION FILINGS IN THE U. S. COURTS OF APPEALS: A FACT SHEET.
Washington, D.C.: Office of Human Resources and Statistics, Statistics Division, Administrative Office of the United
States Courts.
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Copyright 2001 by the author, Christopher P. Banks.