The effects of collegiality on judicial decision making.

AuthorEdwards, Harry T.

In The Nature of the Judicial Process, Justice Benjamin Cardozo tried to explain how appellate judges overcome their individual predilections in decision making. (1) His thesis was that the different perspectives of the members of an appellate bench "balance one another." (2) He argued that "out of the attrition of diverse minds there is beaten something which has a constancy and uniformity and average value greater than its component elements." (3) Attrition, of course, literally means the gradual wearing down through sustained attack or pressure, or the wearing away by friction. (4) It is interesting that Justice Cardozo chose this word to explain how "diverse minds" come together to produce "truth and order" (5) in decision making. I think that he was wrong in his explanation. Collegiality, not attrition, is the process by which judges achieve the "greater value" of which he wrote.

INTRODUCTION

In recent years, I have written several articles and given a number of speeches in which I have reflected on collegiality as it informs the judicial function. (6) I have contended that some academics who have analyzed judicial decision making, especially on the basis of limited empirical data, have paid insufficient attention to collegiality. (7) In particular, I have rejected the neo-realist arguments of scholars who claim that the personal ideologies and political leanings of the judges on the D.C. Circuit are crucial determinants in the court's decision-making process. (8) These scholars invariably ignore the many ways in which collegiality mitigates judges' ideological preferences and enables us to find common ground and reach better decisions.

When I first joined the D.C. Circuit twenty-three years ago, collegiality drew very little attention in scholarly writings on judicial decision making. In recent years, especially as empiricists have attempted to quantify judicial decision making, the idea of collegiality has gained some currency. Scholars and judges have noted that these quantitative studies are inherently suspect, because they fail to account for the effects of collegiality on judicial decision making. (9) Thus far, however, discussions of collegiality, mostly by judges, have been brief and suggestive, usually introduced only in passing. (10) No one has attempted a comprehensive, sustained treatment of collegiality--what it is, how it affects group decisions on appellate courts, how it is achieved and maintained, and how courts with collegiality may differ from those without it. (11) That is my aim in this Article.

Until now, my own reflections on collegiality and its effects have been either tentative, formed before I had actually experienced collegiality on the D.C. Circuit, (12) or limited, framed in response to ideology-based accounts of judicial decision making. (13) Here, I focus on judicial collegiality as a concept in its own right and draw on observations gained during my twenty-three years on the bench to fill out its characteristics and effects. Legal scholars generally have given judicial collegiality short shrift. In making this observation, I do not mean to disparage members of the legal academy. I understand that scholars do not have access to collegial interactions among judges on a court, for most judicial deliberations are confidential. So it is understandable that scholars have not afforded collegiality the attention it deserves. Nonetheless, collegiality merits serious discussion to generate a fuller understanding of judicial decision making.

Obviously, judges can be most helpful in filling in the variables of judging that may not be readily visible to academics. (14) I do not claim that collegiality is the holy grail of judging. But it is a crucial variable that deserves more attention by scholars who study appellate courts. Thus, in this Article, I give content to collegiality by describing how it works, observing its effects on appellate decision making, reflecting frankly on my experiences on a circuit court in both collegial and uncollegial times, and exploring factors that may promote or undermine collegiality.

In discussing the effects of collegiality on judicial decision making, I have in mind collegiality only in the circuit courts. I do not address district courts or the Supreme Court. Trial judges sit alone, so they normally do not experience the sort of collegial deliberations at the core of appellate judging. The Supreme Court, however, is a collegial body, (15) and commentators have noted the group-decisional aspects of the Court's work. (16) Some of the insights generated by the social science studies of group decision making among Supreme Court Justices (17) may lend to an understanding of judicial deliberations among circuit court judges. But I limit my own observations on collegiality to the circuit courts, because it is what I know best and, also, because I am inclined to believe that the differences between the Supreme Court and circuit courts may be too substantial to generalize from one to the other.

Most significantly, the Supreme Court's docket consists of many more "very hard" cases than do those of the lower appellate courts. (18) The majority of the cases in the circuit courts admit of a right or a best answer and do not require the exercise of discretion. (19) Lower appellate courts are thus constrained far more than the Supreme Court. As a result, in the eyes of the public, the media, judges, and the legal profession, the Supreme Court is seen as more of a "political" institution than are the lower appellate courts. The Supreme Court also faces the burden of having to sit en banc in every case. This may mean that collegiality on the Court operates very differently from the collegial process at work in the lower appellate courts, where judges only rarely sit en banc. Thus, my discussion of collegiality does not refer to the Supreme Court.

THE PRINCIPLE OF "COLLEGIALITY" BRIEFLY STATED

When I speak of a collegial court, I do not mean that all judges are friends. And I do not mean that the members of the court never disagree on substantive issues. That would not be collegiality, but homogeneity or conformity, which would make for a decidedly unhealthy judiciary. Instead, what I mean is that judges have a common interest, as members of the judiciary, in getting the law right, (20) and that, as a result, we are willing to listen, persuade, and be persuaded, all in an atmosphere of civility and respect. Collegiality is a process that helps to create the conditions for principled agreement, by allowing all points of view to be aired and considered. Specifically, it is my contention that collegiality plays an important part in mitigating the role of partisan politics and personal ideology by allowing judges of differing perspectives and philosophies to communicate with, listen to, and ultimately influence one another in constructive and law-abiding ways. (21)

What is at issue in the ongoing collegiality-ideology debate is not whether judges have well-defined political beliefs or other strongly held views about particular legal subjects; surely they do, and this, in and of itself, is not a bad thing. Instead, the real issue is the degree to which those views ordain the outcomes of the cases that come before the appellate courts. Collegiality helps ensure that results are not preordained. The more collegial the court, the more likely it is that the cases that come before it will be determined solely on their legal merits.

THE MITIGATING EFFECTS OF COLLEGIALITY ON PARTISANSHIP, DISAGREEMENT, AND DISSENTING OPINIONS

In an uncollegial environment, divergent views among members of a court often end up as dissenting opinions. Why? Because judges tend to follow a "party line" and adopt unalterable positions on the issues before them. This is especially true in the hard and very hard cases that involve highly controversial issues. Judges who initially hold different views tend not to think hard about the quality of the arguments made by those with whom they disagree, so no serious attempt is made to find common ground. Judicial divisions are sharp and firm. And sharp divisions on hard and very hard issues give rise to "ideological camps" among judges, which in turn beget divisions in cases that are not very difficult. It is not a good situation.

I should be clear again that, when I speak of collegial decision making, I am not endorsing the suppression of divergent views among members of a court. Quite the contrary. In a collegial environment, divergent views are more likely to gain a full airing in the deliberative process--judges go back and forth in their deliberations over disputed and difficult issues until agreement is reached. This is not a matter of one judge "compromising" his or her views to a prevailing majority. Rather, until a final judgment is reached, judges participate as equals in the deliberative process--each judicial voice carries weight, because each judge is willing to hear and respond to differing positions. The mutual aim of the judges is to apply the law and find the right answer.

Some commentators worry that, when members of a court have strong collegial relationships, judges may be reluctant to challenge colleagues and may join opinions to preserve personal relationships. They argue that "[l]ess collegiality may thus increase independence--a virtue of good judging." (22) In my view, it is collegiality that allows judges to disagree freely and to use their disagreements to improve and refine the opinions of the court. Strong collegial relationships are respectful of each judge's independence of mind while acknowledging that appellate judging is an inherently interdependent enterprise. (23)

Social science studies on group composition and decision making (24) offer some support for the idea that collegiality may make disagreement more comfortable and more likely, not less. These studies indicate that group members who are familiar to...

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