Panel Composition and Voting on the U.S. Courts of Appeals over Time

• Author: Jonathan P. Kastellec
• Date: 01 June 2011
• Published date: 01 June 2011
• DOI: 10.1177/1065912909356889
• Subject Matter: Articles

Political Research Quarterly

64(2) 377 –391

© 2011 University of Utah

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DOI: 10.1177/1065912909356889

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Panel Composition and Voting on

the U.S. Courts of Appeals over Time

Jonathan P. Kastellec1

Abstract

This article investigates two issues unexplored in studies of the relationship between panel composition and voting on

three-judge panels of the Courts of Appeals: how often will panel composition influence case outcomes, and how has

the relationship between panel composition and panel voting changed over time? The author shows that while long

stretches of single-party control of the presidency in the first half of the twentieth century often produced a high rate

of panels with three judges from the same party, frequent turnover of White House control in the past half century has

helped ensure that a majority of panels are composed of at least one judge from each party. The author also presents

the first systematic longitudinal analysis of panel composition and judicial behavior, showing that the relationship

between the two is a relatively recent phenomenon. These findings have important implications for understanding

collegial behavior on the Courts of Appeals.

Keywords

courts of appeals, panel composition, panel effects, voting, judging

On June 12, 2007, a divided three-judge panel of the

Fourth Circuit ruled that the Bush administration could

not indefinitely imprison a legal U.S. resident suspected

of being an enemy combatant, rejecting the government’s

broad claims of constitutional and statutory authority to

place suspected terrorists in indefinite military detention

even if they were seized as civilians.1 As news accounts

noted, the two judges in the majority, Diana Motz and

Roger Gregory, were appointed by President Clinton,

while the dissenting judge, Henry Hudson, was appointed

by President George W. Bush (Leonig 2007; Liptak

2007). Given that at the time of the decision the circuit

was evenly split between Republican and Democratic

appointees, it is plausible that had a different panel heard

the case, the panel would have ruled in the government’s

favor. Indeed, two months later, the full circuit voted to

vacate the panel’s decision and rehear the case en banc

(Smith 2007).2

As this case illustrates, and as scholars of the courts of

appeals have long observed, the composition of three-

judge panels on the U.S. courts of appeals has the poten-

tial to affect who wins and loses in a given case (see, e.g.,

Atkins 1973; Goldman 1968; Songer 1982). Given vary-

ing preferences among the judges in a circuit, and the fact

that a panel decision represents the views of a majority of

three judges, the assignment of judges to a particular

panel may increase the probability of a certain outcome.

The relationship between panel assignment and case out-

comes, in turn, will be influenced by the distribution of

preferences in the judiciary as a whole, which is mainly a

function of partisan control of the White House and the

ability of a president to appoint like-minded judges to the

federal bench.

If cases in the courts of appeals were decided by a single

judge, as cases in district courts are, we would expect the

distribution of case outcomes in the aggregate to closely

follow the distribution of preferences in the circuit courts.

In recent years, however, scholars have illustrated how

panel decision making—that is, the fact that cases are

decided by three judges, not one—creates incentives and

collegial dynamics that belie a simple model of prefer-

ence aggregation on a three-judge panel. These studies

have moved beyond studying the voting behavior of

appellate court judges in isolation from their panel col-

leagues and toward what Cameron and Cummings (2003)

label a “contextual approach,” which takes into account

how panel composition can affect both individual judicial

1Princeton University, Princeton, New Jersey, USA

Corresponding Author:

Jonathan P. Kastellec, Department of Politics, 39 Corwin Hall,

Princeton University, Princeton, NJ 08544, USA

Email: jkastell@princeton.edu