Communication in the Ninth Circuit: a Concern for Collegiality

• Publication year: 1987
• Citation: Vol. 11 No. 01

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 11, No. 1FALL 1987

Communication in the Ninth Circuit: A Concern for Collegiality(fn*)

Stephen L. Wasby(fn**)

Table of Contents

I. Introduction: Structure and Content............... 74

A. Why Communication?.......................... 74

B. Why Collegiality?............................... 75

C. Why the Ninth Circuit?......................... 76

D. The Study....................................... 83

II. The Court's Organizational Structure .............. 86

III. Case Processing: A Preliminary Sketch............ 89

IV. Screening: Non-Argument Cases................... 91

V. Argued Cases........................................ 98

A. Prior to Argument.............................. 98

B. Argument and Conference ..................... 99

C. After Conference ............................... 102

D. Communication Outside the Panel............. 104

VI. The En Banc......................................... 106

A. The En Banc Itself.............................. 108

B. Inconsistency and Commmunication........... 113

VII. A Note on District Judges .......................... 118

VIII. Law Clerks and Staff Attorneys.................... 121

A. Communication Through Law Clerks.......... 121

B. Staff Attorneys: Motions....................... 124

IX. Factors Affecting Communication.................. 127

A. Norms........................................... 127

B. Numbers......................................... 129

C. Geography and Judges' Location............... 133

X. Concluding Comments.............................. 136

I. Introduction: Structure and Content

This article addresses communication among judges in a large appellate court-the U.S. Court of Appeals for the Ninth Circuit. We examine how judges communicate with each other in the course of reaching decisions, not the substance of the judges' communication or the court's doctrinal output. That message and medium are related can be seen in potential effects on the internal consistency of the court's doctrine, but the topic of inquiry is not the message but the medium.

A. Why Communication?

Attention to communication in appellate courts is important because it is a key interaction variable in a judicial institution. Attention to courts like the Ninth Circuit is important because we need to have a picture of appellate courts which differ from those-the U.S. Supreme Court and many state tribunals-in which all seven or nine judges have chambers in the same building.(fn1) Although the judges of those courts do not make frequent use of the opportunity to go down the hall to discuss a jurisprudential point with a colleague,(fn2) they do meet as a collective body with some frequency to decide cases and to debate opinions they will issue. By contrast, although from time to time convening as en banc courts, the federal appellate courts, whatever their size, decide most cases through rotating three-judge panels, and their judges do not maintain chambers in the same courthouse. Because these courts thus provide an institution potentially quite different from what we might call the "Supreme Court model" of appellate court decision-making, we need to know whether and how differences from that model affect communication within the court.

Communication among judges of a multi-member court, particularly a large one, is of interest not simply because one would prefer that judges break bread together rather than be at each others' throats (or break heads rather than bread). Concern has been expressed that increased caseloads and the increased numbers of judges not only "strain working relationships" but also "threaten the stability and continuity of law."(fn3) In short, failed communication resulting from larger courts implicates the quality of the court's output. Effective communication among the judges is important not only if three-judge panels are to be able to agree on dispositions and opinions, but is also crucial if inconsistency in the law of the circuit, as different panels take different doctrinal tacks and thus reach conflicting outcomes, is not to be a problem of serious dimension.(fn4)

B. Why Collegiality?

Communication is at the heart of "the immediate relations judges have with colleagues on the bench."(fn5) That makes communication important because of its implications for collegiality. Although some use the term "collegial" to mean simply multi-member, for most judges a "collegial" court is not simply synonymous with a multi-member one. First Circuit Judge Frank Coffin has written about the "intimacy, continuity, and dynamism in the relations among judges" in smaller appellate courts and the virtues of the continuing working relations among those colleagues.(fn6) For the Ninth Circuit's judges, a col-legial court is a "cohesive," "friendly," "warm group" of people,(fn7) one in which the judges have "mutual respect" and "understanding" for each other and maintain friendship across ideological lines. Such a court is something the judges work hard to retain despite difficulties in a court with many judges.(fn8) Particularly when there is an intracourt dispute as to how to handle some business, judges are quick to express concern about the need for collegiality and to stress the importance of avoiding divisiveness and of putting contested, and controverted, decisions behind them.

C. Why the Ninth Circuit?

A broad understanding of the judicial process in appellate courts is necessary, not only for social scientists and other observers of the judicial system, but also for lawyers because many lawyers and even many of those practicing before appellate courts are not aware of the courts' internal functioning. For a fuller understanding of appellate courts, we need to learn both about commonalties among courts and about their idiosyncrasies. As to the latter, Cooper has observed, "One or more circuits within the system of federal circuit courts of appeals are sufficiently unlike other system subunits so that individual organizational analysis is needed in order to understand their operations along with the systemwide perspective."(fn9)

As the largest federal appeals court in terms of geography, number of judges, and caseload, the Ninth Circuit is both a representative and unrepresentative appellate court. It is representative in its operating procedures, and many of the basic patterns of communication described in this article will be found in other circuits.(fn10) However, it is, to use Cooper's words, "sufficiently unlike" other U.S. courts of appeals to warrant a study focusing on it alone. Its wide geographic domain, heavy caseload, and large number of judges of differing ideological views are characteristics thought by many to work against effective internal communication and especially against collegi-ality. If we treat the effects of these elements as problematic, even while hypothesizing that they are likely to have some effect, the Ninth Circuit becomes a useful research site for the study of communication among appellate judges.

The Ninth Circuit is also worthy of attention because of the pressure, now more than a decade old and stimulated by former Chief Justice Burger, to split the circuit. The 1978 Omnibus Judgeship Act made available to the court the option of dividing into two circuits. This option was exercised by the Fifth Circuit but was resisted by the Ninth Circuit's judges. The Ninth Circuit remains intact and external pressure to split the circuit has diminished. An additional reason for studying the Ninth Circuit is the high rate of reversal of its decisions by the Supreme Court, particularly in the October 1983 Term; however, it is unclear whether the high court paid particular attention to Ninth Circuit opinions in choosing cases for review,(fn11) and the rate at which Ninth Circuit rulings have been affirmed has declined since the 1983 Term.

One might at first be tempted to say that, given its characteristics, the Ninth Circuit could not be collegial and perhaps could not even function effectively. Yet we must be careful not to assume that any of the court's characteristics would necessarily and automatically affect communication negatively. For example, judges of differing ideological persuasions, a result of appointments to the Ninth Circuit by Presidents Carter and Reagan,(fn12) might expend effort on being collegial so that differences that affect decisions would not result in an unhappy, fractionated court of the type exemplified by the D.C. Circuit during the tenure of Judges David Bazelon and Warren Burger.

The same is true as to the number of judges. Some have suggested that any court of more than nine judges, in the conventional wisdom the upper limit for court size, cannot even function. Yet there are almost twice as many active-duty judges in the Ninth Circuit (28) as in the next largest federal appellate court, the new Fifth Circuit (16), giving rise to concerns that a court of 28 active-duty judges plus several senior circuit judges cannot remain collegial in any meaningful sense of the word.(fn13) When the Ninth Circuit had only 13 judgeships but more were anticipated, the comment was heard that a court of 23 judges, much less one of 28, "won't be a court; that's a commission." However, one judge said that although the country had "never had a court of 28...