Institutional conservatism and its impact on appellate decision-making: an empirical study of the United States Court of Appeals for the Second Circuit.

• Author: Brenner, Robert J.

When there's a dissent, I do not have to wonder. I may still think the majority is right, but I understand, in a way I often do not when the opinion is unanimous, what the majority really decided, and what it rejected--what it would have decided had it gone the other way. (1)

1. INTRODUCTION

   While dissenting opinions are often overlooked, in many instances dissenting opinions represent crucial viewpoints on a wide array of legal issues. Dissenting opinions shed light on competing considerations which a court must consider in reaching a well-reasoned result. (2) Dissents not only raise alternate viewpoints, but allow those reading a court decision to truly understand "what the majority really decided." (3) Further, dissents provide an opportunity for the reader of a decision to appreciate what the majority rejected, and what a court would have decided if the case had an alternate outcome. (4)

   The dissenting opinion also serves a safeguard in the judicial decision-making process. (5) Proponents argue that the dissenting opinion "keep[s] the majority accountable for the rationale and consequences of its decision," (6) and "forc[es] the prevailing party to deal with the most difficult questions offered by its opponent." (7) On the other hand, however, dissenting opinions may undermine the judicial decision-making process--dissenting opinions "can do [real] harm." (8) An author of a dissenting opinion can damage the law, undermining the jurisprudence set forth in the majority opinion. (9) However, despite arguments raised by critics, dissenting opinions will always play a critical role in the judicial system, refining the breadth and scope of majority opinions. (10)

   An empirical study of a court, through an analysis of majority and dissenting opinions, and the judges by whom they were rendered, can be especially revealing when attempting to understand the jurisprudence developed by a particular court over time. (11) Judges, like all of us, have within them "a stream of tendency ... which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals." (12)

   The following study examines dissenting opinions as they may be affected by notions of institutional conservatism, authored by judges sitting on the United States Court of Appeals for the Second Circuit during a period beginning August 1, 2006 and ending October 1, 2011. This article seeks to impart a practical and useful perspective to practitioners and academicians, which may prove helpful to those seeking to understand the motivations underlying dissenting opinions at the Second Circuit.

   Part II of this article will present an overview of institutional conservatism, and its interface with the decision-making practices of judges sitting on the Second Circuit. Parts III and IV will specifically analyze the dissents of Chief Judge Dennis Jacobs and Judge Richard C. Wesley, respectively. Both Parts III and IV will also provide a brief biography of each judge, and the impact which their backgrounds may have on their dissents. Finally, Part V concludes by offering a summary of institutional conservatism at the Second Circuit and makes predictions regarding future decision-making trends at the Second Circuit.

   It should be noted that this study does not purport to be one hundred percent accurate in either its data or analysis thereof. This study does, however, purport to provide a useful analysis of institutional conservatism, as it may exist at the Second Circuit. This article will also identify trends, as they may exist, in the decision-making and authoring of dissenting opinions by Chief Judge Jacobs and Judge Wesley.

2. INSTITUTIONAL CONSERVATISM AT THE SECOND CIRCUIT

   The examination of Second Circuit decisions illuminates the priorities of judges which underlie their decisions, and allows for readily identifiable voting patterns on the court to be ascertained. This study has made it clear that certain preexisting trends affect the decision-making of the Second Circuit as a whole, as well as the decision-making of individual judges. Chief Judge Jacobs and Judge Wesley often dissent to protect individual rights in egregious circumstances, but seem to dissent most often to protect the rights of large institutions. (13)

   1. An Empirical Analysis of Dissent at the Second Circuit

   For the time period studied, beginning August 1, 2006 and ending October 1, 2011, the Second Circuit decided nearly twelve thousand cases. (14) Of these cases, there were 117 instances where split decisions occurred. (15) Including these 117 instances of split decisions, there were several decisions where multiple dissenting opinions were authored. (16) The total number of dissents authored during the study period is 122. (17)

   During the time period studied, Chief Judge Jacobs heard 2,036 cases, and authored dissenting opinions in eight cases. (18) During the same period, Judge Wesley heard 2,046 cases and authored dissenting opinions in six cases. (19)

   At first glance, compared to the number of cases heard each year, it does not appear that Judges Jacobs and Wesley dissent often. Despite the seemingly low instances of dissent, as compared to the total cases heard by Judges Jacobs and Wesley, each dissent is of great significance. Each individual dissent can shed light onto the factors and circumstances which have the tendency to cause each of these judges to dissent.

   Figure one provides a visual comparison of the dissenting opinions of Judges Jacobs and Wesley as compared to dissents authored by other members of the court, including those judges sitting on the Second Circuit temporarily by designation. Table two provides a numerical comparison of the same data. As can be seen in both figure one and table two, dissenting opinions authored by Judges Jacobs and Wesley compose a relatively significant portion of the total dissents authored during the study period. As a result, studying the dissents of each of these Judges is a worthwhile exercise in attempting to understand the patterns of dissent, and the jurisprudence advanced by the Second Circuit during the study period. (21)

3. THE DISSENTS OF CHIEF JUDGE JACOBS

   Chief Judge Jacobs, as noted above, has authored several dissents during the study period. (22) An analysis of each of these dissents can shed light onto the values and issues which motivate the Chief Judge to dissent. Because Judge Jacobs is the Chief Judge of the Second Circuit, it is particularly important to consider the motivations underlying each of his dissents. "[A] dissenter should feel free to express the precise degree of his or her disagreement--or, if warranted, outrage--that he or she believes is appropriate given the substance and tenor of the majority's opinion in any given case." (23) Thus, not only is it important to consider Chief Judge Jacobs' dissents, but it is also important to note the impact these dissents may have on others members of the court.

   1. Chief Judge Dennis Jacobs

      As part of analyzing Chief Judge Jacobs' pattern of dissent, it is important to consider his biography, how he rose to the Second Circuit, and events in his life which impact his judicial decision-making.

      "Chief Judge Jacobs is a lifelong New Yorker. He was born and raised on [New York's] Upper West Side...." (24) Chief Judge Jacobs earned both his master's and law degrees from New York University. (25) After graduating from New York University Law School, Chief Judge Jacobs joined the New York City firm of Simpson, Thacher & Barlett. (26) Chief Judge Jacobs has stated that he "'was quite happy practicing law,'" and had not extensively contemplated being a Judge until he was appointed to the Second Circuit in 1992. (27) He was named Chief Judge of the Second Circuit in 2006, a term which will expire on September 30, 2013. (28)

      Chief Judge Jacobs has noted that "[l]awyers and judges sometimes 'lack humility in approaching great matters,'... wrongly considering themselves 'omni-competent'... [at the expense of those] whose expertise and insights deserve to be part of the organic growth of the law." (29)

   2. Chief Judge Jacobs' Dissenting Opinions

      During the period of this study, Chief Judge Jacobs has authored dissents on a variety of matters. (30) Chief Judge Jacobs appears to be the most "vocal" when the rights of a severely aggrieved individual are at issue. (31) However, Chief Judge Jacobs also appears to dissent to protect large institutions--often casting...