Separate Opinion Writing Under Mandatory Appellate Jurisdiction: Three‐Judge District Court Panels and the Voting Rights Act

• Date: 01 March 2020
• Author: Maxwell Mak,Andrew H. Sidman
• DOI: http://doi.org/10.1111/jels.12244
• Published date: 01 March 2020

Journal of Empirical Legal Studies

Volume 17, Issue 1, 116–138, March 2020

Separate Opinion Writing Under

Mandatory Appellate Jurisdiction:

Three-Judge District Court Panels

and the Voting Rights Act

Maxwell Mak and Andrew H. Sidman*

Most of the empirical work on separate opinion writing by lower federal court judges exam-

ines the U.S. Courts of Appeals. Given the Supreme Court’s discretionary jurisdiction, it is

argued that dissenting opinions operate as a cue signaling that a case is worthy of review.

Concurrences, on the other hand, allow judges to join dispositional majorities while still

expressing differences in legal reasoning from the majority. Likely in an effort to minimize

dissent, the behavior of circuit court judges is found to be less influenced by ideology when

potential dissenters serve with them. Despite the specter of Supreme Court review, these

works generally find that the motivation to write separately is based largely in ideologically

differences among panelists and less so on preferences of the Supreme Court. What, how-

ever, does separate opinion writing look like when the Court’s jurisdiction is mandatory, as

it is over three-judge district court panels? Among other uses required by law, these district

court panels are used to adjudicate cases arising under the Voting Rights Act of 1965. These

panels also differ from the traditional judicial structure by placing district court judges, who

traditionally decide cases individually, in a multimember setting with another district court

judge and a circuit court judge. Examining separate opinion writing on these panels, we

find that ideological distance from the majority opinion writer is still an important factor.

This, however, is conditioned by the preferences of the Supreme Court, which exert a much

stronger influence over behavior than they do in the traditional appellate court setting.

I. Introduction

Much of what we know about separate opinion writing on the lower federal courts comes

from studies of the circuit courts, over which the Supreme Court exercises discretionary

appellate jurisdiction. Despite the very small proportion of circuit court decisions that

*Address correspondence to Andrew H. Sidman, Associate Professor & Chair, Department of Political Science,

John Jay College of Criminal Justice, 524 W. 59th St., New York, NY 10019; email: asidman@jjay.cuny.edu. Mak is

Associate Professor of Political Science at John Jay College of Criminal Justice.

The authors thank Vincent Palmeri, Nico Denise, Ruben Huertero, and Neesa Rajkumar, who served as our

research assistants during the collection of these data. The authors also thank Jordan Carr Peterson and Morga n

Hazelton for the feedback on this project they provided at the 2019 annual meeting of the Midwest Political Sci-

ence Association. Finally, the authors thank the anonymous reviewers for their insightful comments and

suggestions.

116

are actually reviewed either by the Court or en banc, the threat of review and reversal is

still present. Circuit court judges should work toward crafting unanimous decisions in an

effort to avoid review by the full circuit or the Court itself. Attitudes and other dynamics

within the panels themselves exert a strong influence over the decision of judges to

author concurrences or dissents. Preferences of the Supreme Court, however, are found

to have only a minor effect on separate opinion writing at the circuit courts. What

explains the decision to write separately, we wonder, when the review context of the court

is changed? We seek to answer this question through a study of cases involving the Voting

Rights Act

1

(VRA) heard by three-judge district court panels.

Passed in 1965, the VRA provided the federal government an “array of potent

weapons against the evil [of widespread resistance to the Fifteenth Amendment]” (South

Carolina v. Katzenbach 1966:337). Chief Justice Warren, who authored this majority opin-

ion upholding constitutionality of the VRA, would write in an earlier decision that “the

right to elect legislators in a free and unimpaired fashion is a bedrock of our political sys-

tem” (Reynolds v. Sims 1964:562). Congress created the VRA to protect the fundamental

right of racial minorities, especially blacks, to vote and provided an unusual mechanism

for challenging voting rules and regulations of the states. Rather than follow the normal

path through the federal courts, the law mandates that judicial challenges be adjudicated

by three-judge district court panels. Three-judge panels are the norm in the appellate

context with groups of three circuit court judges regularly hearing appeals from the dis-

trict courts. Three-judge district court panels differ from traditional circuit court panels

in two respects fundamental to our question regarding separate opinion writing. First,

these panels are generally comprised of two district court judges and one circuit court

judge, who are not randomly assigned and rarely, if ever, serve on a panel together again.

Second, appeals of decisions by these panels bypass the circuit courts altogether. Deci-

sions of three-judge district court panels are appealed directly to the Supreme Court and

comprise what little remains of the Supreme Court’s mandatory appellate jurisdiction.

The fundamental importance of the right to vote and the need to protect this right

against suppression make the VRA an important area of the law to study. This is especially

the case given the different judicial procedures VRA cases are supposed to follow. Chal-

lenges to state and local laws and regulations governing voting have important political

implications. We generally expect that, similar to judges in other contexts, attitudes are

primary in understanding the decision to write separately. Different from the traditional

circuit court context, we argue that the mandatory appellate jurisdiction of the Supreme

Court over these cases makes judges on these panels very sensitive to the Court’s prefer-

ences. As a result, we expect judges to write separate opinions as their preferences

diverge from the majority opinion writers, but that effect is tempered when writing a sep-

arate opinion that could trigger an appeal to a Supreme Court whose preferences are dis-

tant from the judge’s own.

The special context of three-judge district court panels makes the effects of

intrapanel disagreement conditional on the preferences of the Supreme Court. When a

1

Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437.

Separate Opinion Writing Under Mandatory Appellate Jurisdiction 117