Deliberation and strategy on the United States Courts of Appeals: an empirical exploration of panel effects.

• Author: Kim, Pauline T.

Recent studies have established that the decisions of a federal court of appeals judge are influenced not only by the preferences of the judge, but also by the preferences of her panel colleagues. Although the existence of these "panel effects" is well documented, the reasons that they occur are less well understood. Scholars have proposed a number of competing theories to explain panel effects, but none has been established empirically. In this Article, I report an empirical test of two competing explanations of panel effects--one emphasizing deliberation internal to a circuit panel, the other hypothesizing strategic behavior on the part of circuit judges. The latter explanation posits that court of appeals judges act strategically in light of the expected actions of others and that, therefore, panel effects should depend upon how the preferences of the Supreme Court or the circuit en banc are aligned relative to those of the panel members. Analyzing votes in Title VII sex discrimination cases, I find no support for the theory that panel effects are caused by strategic behavior aimed at inducing or avoiding Supreme Court review. On the other hand, the findings strongly suggest that panel effects are influenced by circuit preferences. Both minority and majority judges on ideologically mixed panels differ in their voting behavior depending upon how the preferences of the circuit as a whole are aligned relative to the panel members. This study provides evidence that panel effects do not result from a dynamic wholly internal to the three judges hearing a case, but are influenced by the environment in the circuit as a whole as well.

INTRODUCTION I. COMPETING EXPLANATIONS A. Panel Effects B. Theoretical Accounts II. TESTING THE STRATEGIC ACCOUNT A. Existing Evidence B. Constructing an Empirical Test C. Data and Empirical Analysis III. RESULTS A. The Supreme Court as Reviewing Court B. The Circuit En Banc as Reviewing Court IV. DISCUSSION AND IMPLICATIONS A. The Role of the Supreme Court and the Circuit En Banc B. Internal Panel Dynamics CONCLUSION APPENDIX INTRODUCTION

One of the central institutional features of the United States courts of appeals is the use of judicial panels to decide cases. Rather than having a single appellate judge decide each appeal, or even having a group of appellate judges deciding in isolation and tallying their votes, the appeals process is specifically structured to promote a collaborative form of decision making. (1) Three appellate judges are assigned to decide a case together, and they typically share their background research, sit together as a panel to hear oral arguments, meet to discuss their views, and issue a single opinion resolving the appeal. (2) Of course, not all cases are typical, and judges sometimes dissent or concur separately. These occurrences are relatively infrequent, however, and cases involving separate opinions are viewed as deviations from the usual model of appellate decision making. Thus, as D.C. Circuit Judge Harry Edwards put it, 'Judging on the appellate bench is a group process." (3)

As a matter of institutional design, why are federal appellate courts structured in this way? Certainly it is not for the sake of efficiency, as the same number of judges sitting alone could decide appeals more quickly than when sitting with two of their colleagues. Most explanations focus on the quality of decision making. (4) Kornhauser and Sager, for example, assert that increasing the number of judges making a decision will increase the probability that a court will reach a correct decision. (5) So long as each judge is more likely than not to decide correctly, a correct outcome is more likely whenever a group of judges decides by majority vote. (6) Others have suggested that this error-reducing effect results from the exchange of ideas and in. formation that occurs during the process of deliberation. (7) For example, Judge Edwards describes the interactions among judges on an appellate panel as "a process of dialogue, persuasion, and revision" (8) that enables them to "find common ground and reach better decisions." (9)

From an empirical perspective, it is difficult to test these claims in the absence of consensus regarding what makes one decision "better" than another. However, scholars have collected considerable evidence suggesting that decision making by a federal court of appeals judge sitting on a three-judge panel differs from what one might expect from that judge sitting alone. In light of the considerable evidence that judges' votes correlate with their political affiliation, (10) one might suppose that federal appellate judges have basic policy preferences that they express through their votes, (11) and that panel decision making simply reflects the aggregation of those preferences through a majority-vote rule. Thus, one might expect that the likelihood that a particular judge would vote for a particular outcome (for example, upholding an affirmative action plan) would be stable, regardless of whether she sat with one, two, or no other like-minded judges. In fact, federal appeals court judges do not vote the same way regardless of panel composition, but instead appear to be influenced by the preferences of the other judges with whom they sit when deciding a case. This phenomenon--commonly referred to as "panel effects"--has been documented in a wide variety of legal contexts. (12)

In one of the earliest studies, Richard Revesz examined the votes of D.C. Circuit judges in environmental cases and concluded that "while individual ideology and panel composition both have important effects on a judge's vote, the ideology of one's colleagues is a better predictor of one's vote than one's own ideology." (13) Similarly, Frank Cross and Emerson Tiller analyzed D.C. Circuit cases involving the application of the Chevron doctrine to agency actions, and concluded that judges' votes were influenced not only by their political affiliation, but also by the composition of the panel on which they sat. (14) More recently, Cass Sunstein, David Schkade, Lisa Ellman, and Andres Sawicki investigated voting patterns on federal appellate panels across circuits and in a variety of legal areas. (15) In most of the issue areas that they examined, they found evidence that a judge's votes are correlated not only with her own political affiliation, but with the political affiliations of her copanelists as well. (16) In some instances, the influence of panel colleagues even appears to swamp individual preferences. Thus, for example, a Republican appointee sitting with two Democratic appointees is more likely to vote to uphold affirmative action programs than a Democratic appointee sitting with two Republican appointees. (17) Clearly, then, the fact that federal appellate judges hear cases in panels of three makes a difference in their decision making.

Although the existence of panel effects is well documented, the reasons that they occur are not clearly understood. Scholars have proposed a number of explanations, but none of these theories has been conclusively established. (18) This Article empirically explores when panel effects occur in an effort to better understand why they occur. More specifically, it offers an empirical test of two competing types of explanations: deliberative and strategic.

By deliberative explanations, I mean to identify those theories that emphasize the internal exchanges that occur among panel members and the potential for these exchanges to influence a judge's vote. For purposes of the empirical test undertaken here, the exact mechanism by which judges influence one another is not critical. It may be the case that they come to persuade one another through the exchange of information and the power of reasoned argument. (19) Alternatively, psychological mechanisms--such as conformity pressures or group polarization--may be operative, leading judges to change their minds when confronted with the opinions of their colleagues. (20) The critical point, for purposes of this study, is that pure deliberative accounts attribute panel effects to the dynamics internal to the members of a panel, rather than to any interaction with other actors in the judicial system.

By contrast, strategic theories explain observed panel effects as the result of strategic behavior by appellate judges. (21) These theories posit that when deciding cases, individual judges advance their goals not simply by exercising their discretion in a manner consistent with their policy preferences, but by taking into account the likely responses of other actors as well. (22) Rather than naively voting their preferences, court of appeals judges are hypothesized to act with an eye to the expected behavior of the Supreme Court, the circuit sitting en banc, and their panel colleagues." (23) An appellate judge will decide whether to vote her sincere preference or to accommodate the views of her colleagues based on her beliefs about the likelihood of further review and the probable outcome if the case is reviewed. Unlike purely deliberative explanations, strategic theories suggest that panel effects will depend upon the preferences of the Supreme Court and/or the circuit as a whole, and not just upon the preferences of the three judges comprising an appellate panel.

Strategic theories play an important role in some accounts of the federal judicial hierarchy. Many scholars have suggested that the risk of reversal assures that lower court judges follow the doctrines set out in Supreme Court precedent, even those with which they disagree." (24) However, given the tens of thousands of cases decided by the courts of appeals each year, the Supreme Court's limited reversal power can only be effective if it has some mechanism for identifying appropriate cases for review. One hypothesis is that court of appeals judges dissent in order to signal to the Supreme Court that certain cases deviate from...