Decision-Making Rules and Judicial Strategy On the United States Courts of Appeals

• Date: 01 December 1972
• Published date: 01 December 1972
• Author: Burton M. Atkins
• DOI: 10.1177/106591297202500404
• Subject Matter: Articles

DECISION-MAKING RULES AND JUDICIAL STRATEGY
ON THE UNITED STATES COURTS OF APPEALS
BURTON M. ATKINS
Florida State University
HE
COMBINED use by the courts of appeals of a three-member rotating
panel procedure with an en banc system provides a provocative context for
testing hypotheses which relate the strategic options available to policy-
oriented judges with institutional decision-making rules.’ One question of particular
interest concerns the extent to which the dual decision-making procedures of the
intermediate appellate courts facilitate a minority’s ability to circumvent a majority’s
policy preference.
Superficially, a system of rotating panels appears to facilitate a proportionate
expression of minority views on a court of appeals. To grasp this proposition, the
policy outcomes on the United States Supreme Court as determined by the decision-
making rules operative there may be compared with a hypothetical instance in which
the decisions of the high court are determined by three-judge panels. Two assump-
tions are made: (1) that the court is composed of two opposing blocs on civil liberty
issues, a liberal majority of six and a conservative minority of three; and (2) that
defection from a bloc is not permissible. Under these conditions, the liberal segment
of the court could determine the gamut of civil liberty policy to be formulated by the
court. The conservative minority must be content with either: (1) complete minor-
ity status, that is, the status quo; (2) joining the majority in order to parake in the
available power to be distributed; (3) capturing votes from the majority in order
to form a new coalition; or (4) awaiting shifts in the court’s personnel that would
be conducive to their conceptions of civil liberty policy. However, if the Supreme
Court changed its decision-making procedures so as to permit the formation of three-
member panels, the contours of majority-minority conflict would alter dramatically.
Incorporating the additional assumptions (1) that all panels may appear with equal
probability and (2) that empirically, all panels do in fact contribute equally to
decision-making, then a minority of three would clearly contribute to policy-making
in those instances when two members of the minority coalition combine to form a
panel with a member of the majority or when the three minority members meet
simultaneously to form a panel. An implicit assumption of the first eventually is
1
Among the more recent emepirically oriented studies of courts of appeals are the following:
Kenneth Vines, "The Role of the Circuit Courts of Appeals in the Judicial Process: A
Case Study," Midwest Journal of Political Science, 7 (1963) 305 ; Sheldon Goldman,
"Conflict and Consensus in the United States Courts of Appeals," Wisconsin Law Re-
view, 1968, p. 461; Goldman, "Judicial Appointments to the United States Courts of
Appeals," Wisconsin Law Review, Winter 1967, p. 186; Goldman, "Voting Behavior in
the United States Courts of Appeals," American Political Science Review, 60 (1966),
374; Burton Atkins, "Some Theoretical Effects of the Decision-Making Rules on the
United States Courts of Appeals," Jurimetrics Journal, September 1970; Richard Rich-
ardson and Kenneth Vines, "Review, Dissent and the Appellate Process: A Political
Interpretation," Journal of Politics, 24 (August 1967), 597; Louis Loeb, "Judicial Blocs
and Judicial Values in Civil Liberties Cases Decided by the Supreme Court of the United
States and the Court of Appeals for the District of Columbia," American University Law
Review, 14 (1965), 146.
626

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627
that the persuasive skill of the majority member is not sufficiently keen as to draw
either one, or both, of the minority members from their original policy preferences.
Walter Murphy’s Elements of Judicial Strategy2 suggests several tactics which
are available to Supreme Court justices who seek to build a majority coalition
persuasion on the merits, increasing personal regard, use of sanctions, bargaining,
co-optation, and in particular for a chief justice, opinion assignment.3 Naturally,
the options available to a policy-oriented judge depend to some extent upon the
formal decision-making rules which operate within the court. If, for example,
unanimity rather than simple majority rule were required then obviously the threat
of dissent would be a meaningless bargaining tool. On the other hand, log rolling
might be an effective ploy on a court which did require unanimity.4
At least one unique tactic available as a consequence of the decision-making
rules operative in the appellate circuit courts is for a policy-oriented judge to wait
for the &dquo;luck of the draw,&dquo; the random selection of three-judge panels, to place him
on a panel whose membership is conducive to deciding issues congruent with his
conception of public policy.
In order for the mechanics of decision-making to bear the desired fruit for the
policy-oriented judge, other factors within the court must be operating to the
minority’s advantage, or at the very least, not to their detriment. For example, three
conditions that would seemingly have to be met are (1) that panels dominated by
the minority faction indeed are formed; (2) that cases involving the issues which
divide the court into majority and minority factions are assigned to the minority
dominated panels and (3) that the minority is at least two in number so that at least
one panel could be controlled by them. So long as the assignments of cases and
judges to panels is not rigged against the minority (or in favor of the majority) the
&dquo;luck of the draw&dquo; can operate to give them a crack at policy-making. Though there
is virtually no evidence to suggest otherwise,5 a chief judge of a circuit, the admin-
istrative head of a court of appeals, could theoretically prevent cases which are
instrumental for a faction’s policy objective from being assigned to panels under
their control. On the other hand, he could just as easily facilitate a faction’s public
policy objective to which he was sympathetic by assigning cases to favorable panels.
The formal rules employed by courts of appeals, in short, enable dissenting
minorities en banc to constitute, and speak for, the full court if and when panels
dominated by that faction are selected to preside. Theoretically, when in control
of panels, this minority could transform its dissenting position and policy preference
into authoritative decisions in situations in which decisions are raised in the panel
context which parallel issues determined en banc. In this fashion, the formalities
of decision-making could allow a highly motivated minority to thwart en bane
policy. In relation to these rules Richardson and Vines have noted that panels can
ignore, or selectively interpret to their own satisfaction, en banc decisions which are
2
Chicago : University of Chicago Press, 1964.
’ Ibid., pp. 43-90.
4
See Robert Sickels, "Illusion of Judicial Consensus : Zoning Decisions in the Maryland Court
of Appeals," American Political Science Review, 59 (1965), 100-104.
5
But, see Cameron’s
dissent in Armstrong v. The Board of Education of the City of Birming-
ham, 323 F-2d 337 (5th cir., 1963).

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contrary to their conception of judicial policy.6 It is this aspect of judicial behavior
in two distinct group settings, both subsumed within a single institution, which shall
be the focus of the remainder of the paper. With the adoption of some quantitative
tools, the following sections seek to determine whether additional insights may be
gained concerning the effects of institutional structure upon coalitional judicial
strategy within the court of appeals.
The following section will provide the relevant descriptive materials necessary
for understanding court of appeals decision-making procedures. In the next part,
en banc voting patterns in the court of appeals for the District of Columbia will be
examined for evidence of policy conflict. The final section will then probe the extent
to which the en banc conflict is mirrored in the panel meetings.
A SURVEY OF COURT OF APPEALS DECISION-MAKING
The United States courts of appeals were established by the Evars Act of 1891
1
as the intermediate tier of the federal judicial system to be located, organizationally,
between the federal district courts and the Supreme Court. By 1891 the Supreme
Court had become so overwhelmed by the quantity of appeals brought before it for
reviewe that measures were needed which would relieve its oppressive case-load.
Statistics concerning the increased volume placed upon the Supreme Court docket
in the latter portion of the nineteenth century indicate the burden with which the
high court had to contend. In I $50~ 253 cases were pending for review by the jus-
tiches by 1870 this number had increased almost three-fold to 636; by 1880 twice
again as many cases were assigned to the docket; and by 1890, 1,816 cases were sent
to the Supreme Court for consideration. The Judiciary Act of 1891, a culmination
of attempts to reform the federal judicial structure, sought, in part, to siphon away
from the Supreme Court, toward the courts of appeals, the majority of cases less
important to the political system as a whole and to thereby permit the Supreme
Court to concentrate upon the fewer number of more important policy questions.
Although each court of appeals determines the details of panel selection and
construction, it is an accepted practice that a judge will not be assigned to any
particular &dquo;committee,&dquo; but will...