Judicial partisanship and obedience to legal doctrine: whistleblowing on the federal Courts of Appeals.

• Author: Cross, Frank B.

In traditional legal analysis, scholars take for granted the effect of Supreme Court doctrine. Lower courts are presumed to adhere to the self-enforcing principle of stare decisis and to apply the doctrines of higher courts to the particular facts of the underlying case.(1) Precedent reputedly controls lower court decisions.(2) Whether such obedience to legal doctrine occurs as routinely as this analysis suggests, however, has not been adequately addressed in the legal literature. Indeed, there are few empirical studies by legal scholars bearing on the matter at all.(3) In this Essay, we go to the heart of the issue and ask the following question: If judges have personal or partisan policy preferences, why would they follow established legal doctrine when it conflicts with those preferences? While there is undoubtedly more than one valid explanation for principled adherence to legal doctrine, we suggest that the prospect of a "whistleblower" on the court--that is, the presence of a judge whose policy preferences differ from the majority's and who will expose the majority's manipulation or disregard of the applicable legal doctrine (if such manipulation or disregard were needed to reach the majority's preferred outcome)--is a significant determinant of whether judges will perform their designated role as principled legal decisionmakers. We do more than merely propose this theory; we test it empirically and find substantial support for our claim.

To be sure, legal doctrine endorsed by the Supreme Court plays a critical role in the decisionmaking of federal jurists, and it would be an overstatement to claim that most judges casually disregard doctrine when it stands in the way of reaching their desired policy outcome. Nonetheless, much of the scholarship simply assumes the sincere application of legal doctrine without considering the possibility that it may at times be nothing more than a convenient rationalization for political decisionmaking.(4) Indeed, many legal scholars explicitly discard the proposition that judges disregard legal doctrine in favor of partisan or ideological policymaking, or ignore the proposition with silent disdain, even in the face of reputable empirical studies in political science demonstrating the existence of such subversions of legal precedent and doctrine.(5)

The traditional position has been challenged by legal realists, critical legal scholars, and political scientists, who are all highly skeptical of the practical importance of legal doctrine. They contend, and empirically demonstrate, that judges often decide cases according to their political proclivities and use precedent, if at all, as an ex post facto justification for their decisions. This scholarship challenges the presumption that judges follow the law out of a sense of responsibility or role orientation. While the Supreme Court can theoretically play a disciplining role by enforcing adherence to doctrine on appeal, the Court's limited resources may preclude effective control.(7) According to the attitudinal model, lower-court obedience to legal doctrine has little practical effect in determining judicial decisions.(8)

Just as practitioners of the traditional position have ignored political variables, those in the other camp (legal realists, critical legal scholars, and political scientists) have paid little heed to the role legal doctrine might play in judicial decisionmaking.(9) Indeed, many of their claims of political decisionmaking fail to incorporate any legal variables.(10) For the most part, these scholars stand steadfast in the belief that the explanatory value of legal variables is at best not capable of being tested or, as is more likely, nonexistent.(11)

The battle over the significance of doctrine has persisted without truly being joined. Traditional legal scholars have assiduously guarded their disciplinary turf against outsiders as have those promoting the more cynical explanations of judicial decisionmaking. In this Essay, we fuse the various judicial decisionmaking models of political scientists and legal scholars to explain and demonstrate empirically under what conditions appellate court judges do obey the legal doctrines the Supreme Court has set out. We examine this proposition in the context of administrative law, where the Supreme Court has laid down a reputedly path-breaking legal doctrine governing judicial review of administrative agencies. We ask whether, and under what conditions, appellate courts adhere to this command.

1. A THEORY OF COMPLIANCE WITH DOCTRINE

   Once the Supreme Court sets forth doctrines, lower courts may comply or disobey. If lower courts comply, they may do so for a number of reasons: (1) compliance with doctrine enables the lower courts to effect their political preferences;(12) (2) the lower courts are dutifully performing their roles as sincere jurists, applying the principles in an ideologically (or politically) neutral manner;(13) or (3) the lower courts fear exposure of any noncompliance and consequent reversal. Lower courts may disobey because (4) they wish to effect their political preferences;(14) or (5) they mean to apply doctrine dutifully but are influenced to apply the rules in a way that achieves their political preferences.(15) Each of these five modes may operate at different times and under different circumstances.(16)

   Our first theoretical proposition is simple: Judges are more likely to obey legal doctrine when such doctrine supports the partisan or ideological policy preferences of the court majority. In those cases in which doctrine does not support the partisan or ideological policy preferences of the court majority, we expect somewhat more disobedience. Our second theoretical proposition is that courts are more likely to comply with doctrine (rather than to decide based solely on their political preferences) when the judicial panel is politically or ideologically divided. This results from the presence of a minority position on the panel that creates an opportunity for whistleblowing--a minority member with doctrine on her side and the ability, through a dissent, to expose disobedient decisionmaking by the majority. The minority member may threaten to highlight the disobedience externally to a higher court or to Congress, producing exposure and possible reversal.(17) Alternatively, the minority may expose the subconscious disobedience internally, causing the majority to acknowledge its disregard or unintentional manipulation of doctrine. Consequently, in the presence of such a whistleblower, the majority must sometimes capitulate and keep its decision within the confines of doctrine.

   We apply our analysis to the federal courts of appeals.(18) These courts are organized such that three-judge panels are randomly selected to bear appeals from lower federal district courts or federal regulatory agencies. After these panels make their decisions, the outcome may be appealed to the full circuit sitting en banc or to the Supreme Court. Figure 1 illustrates the likelihood that the panel follows established doctrine given the alignment of preferences within the judicial panel (measured by either party affiliation of the judges or some other independent measure of judicial preferences) and the consistency of these preferences with the outcome dictated by adhering to doctrine. The alignment numbers (3-0 and 2-1) do not necessarily indicate the actual voting of the judges (since compromises may be made among the panel members); the numbers indicate only the underlying policy preference alignments of the panel members.

   [Figure 1 ILLUSTRATION OMITTED]

   Figure 1 suggests that if the policy favored by the majority of the members on the panel would be accomplished through adherence to the applicable legal doctrine--that is, when there is convergence between sincere application of the doctrine and the policy preferences of the majority--then that panel will be more likely to follow the doctrine than if convergence did not exist. In such a case, legal doctrine is not a constraint upon the pursuance of policy goals; instead, it helps to legitimize the policy outcome of the unified panel. In contrast, if the three members of the panel are unified in their policy preferences and if they would not benefit from sincere application of the doctrine--that is, there is no convergence between the majority's policy preferences and the sincere application of doctrine--then they would be mom likely to ignore doctrine. If the members of the panel are divided two-to-one in their policy preferences, however, and if the minority member's policy preferences converge with the application of doctrine while the majority's preferences do not, the minority member could act as a whistleblower, forcing the majority to follow the doctrine mom often than if all three members were unified against application of the doctrine. In this sense, doctrine does matter because it is a real constraint upon the court majority's ability to pursue policy goals.

3. JUDICIAL OBEDIENCE TO THE CHEVRON DOCTRINE: APPLYING THE THEORY TO ADMINISTRATIVE LAW

   The Supreme Court in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,(19) seemingly commanded lower courts to grant considerable deference to federal administrative agency interpretations of statutes. The decision was of great import for administrative law and also offers an ideal test case for determining whether Supreme Court doctrine has a material effect in restraining the decisions of lower courts. One can examine lower-court decisionmaking in the wake of Chevron and observe whether the lower court is granting deference neutrally, as per doctrine, or is manipulating the deference doctrine to achieve politically desirable outcomes. We employ Chevron cases to test our theories of judicial decisionmaking. First, however, some background on Chevron and its interpretation is necessary.

   1. The Terms of Chevron

      Chevron arose from a creative...