Sound the Alarm? Judicial Decisions Regarding Publication and Dissent

• Author: Rachael K. Hinkle,Jee Seon Jeon,Morgan Hazelton
• Published date: 01 July 2016
• Date: 01 July 2016
• DOI: http://doi.org/10.1177/1532673X16628640
• Subject Matter: Articles

American Politics Research

2016, Vol. 44(4) 649 –681

© The Author(s) 2016

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DOI: 10.1177/1532673X16628640

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Article

Sound the Alarm? Judicial

Decisions Regarding

Publication and Dissent

Morgan Hazelton1, Rachael K. Hinkle2,

and Jee Seon Jeon3

Abstract

Judges sitting on three-judge panels in the U.S. Courts of Appeals make

decisions under the shadow of potential review by supervising courts, the

full circuit sitting en banc and the Supreme Court. Review is more likely

for published decisions, particularly when a dissent is present. Unpublished

decisions do not have binding precedential status. These factors create the

potential for judges to be strategic in deciding whether to publish a decision

or write a dissent. We develop a formal model of decision aggregation

that takes the possibility of negotiating a tradeoff between the ideological

location of a rule and its precedential value into account. Implications of

our model are tested empirically using an original data set of search and

seizure cases. Our model and results indicate that preferences within the

panel and judicial hierarchy coupled with discretionary review influence

judges’ decisions regarding publication and dissent, and that these choices

have important consequences.

Keywords

court of appeals, whistle-blower, publication, strategic, dissent

1Saint Louis University, MO, USA

2University at Buffalo, NY, USA

3Florida State University, Tallahassee, FL, USA

Corresponding Author:

Morgan Hazelton, Saint Louis University, McGannon Hall, Room 123, 3750 Lindell Blvd.,

St. Louis, MO 63108, USA.

Email: hazeltonml@slu.edu

628640APRXXX10.1177/1532673X16628640American Politics ResearchHazelton et al.

research-article2016

650 American Politics Research 44(4)

Introduction

Many scholars believe that, in a judicial hierarchy, judges on higher courts

are able to exert at least some control over judges on lower courts via the

threat of review (see, for example, Beim, Hirsch, & Kastellec, 2014; Cross &

Tiller, 1998; Kornhauser, 1994; cf. Benesh, 2002; Bowie & Songer, 2008;

Klein & Hume, 2003). Review carries with it the threat of reversal, which is

potentially costly to lower court judges (Beim et al., 2014; Haire, Lindquist,

& Songer, 2003). If an appellate decision is reversed by a higher court, the

judges in the majority face the creation or furtherance of a legal rule they dis-

like (Cameron, Segal, & Songer, 2000; McNollgast, 1994). Judges do not

know ahead of time which decisions will be reviewed, but there are known

factors that make review more likely: Among these factors are the presence

of a dissent (Black & Owens, 2009; Caldeira, Wright, & Zorn, 1999; Epstein,

Landes, & Posner, 2011) and the publication status of the decision (see, for

example, Black & Owens, 2009; Wald, 1985; Wasby, 2001). Generally, fed-

eral judges sitting on panels in the courts of appeals have control over the

decisions pertaining to dissents and publication. Thus, judges are in a posi-

tion to act in certain ways to encourage or discourage review based on the

ideological preferences of themselves and the other judges on the panel.

Scholars have considered how panel majorities may alter the rule or disposi-

tion they announce to appease a potential dissenter and reduce the chances of

review (see, for example, Beim et al., 2014; Cross & Tiller, 1998; Epstein

et al., 2011; Kastellec, 2007). In this article, we highlight the implications of

an additional factor that is often overlooked by scholars: The panel majority

may also sacrifice the precedential power of a decision to satisfy, or at least

neutralize, a minority judge by choosing not to publish the decision. This

potential for strategic behavior has been noted by prominent judges, includ-

ing Justices Thomas and Blackmun (Plumely v. Austin, 2015, 831 (Thomas,

J., dissenting); Smith v. United States, 1991, 1020 (Blackmun, J., dissent-

ing)), and legal commentators, such as Adam Liptak of the New York Times

(Liptak, 2015), and deserves scholarly attention.

In this article, we consider the potential impact of the strategic use of pub-

lication and dissent by incorporating these decisions into an examination of

how members of an ideologically split panel on a federal courts of appeals

negotiate the location of the legal rule in the shadow of discretionary review.

In the vein of the work of Cross and Tiller (1998), Kastellec (2007), and Beim

et al. (2014), among others, we investigate how an additional and generally

ignored institutional feature of federal circuit courts, the publication decision,

influences such bargaining. First, we construct a formal model of circuit deci-

sion making and discuss how accounting for the publication decision

Hazelton et al. 651

generates interesting and counterintuitive predictions. Second, we empirically

test some key predictions using an original dataset of search and seizure cases

and find evidence of patterns predicted by our model. Specifically, our model

indicates both that a majority is less likely to publish a decision and, thus, a

potential whistle-blower is less likely to write a dissent when the majority is

farther from the supervising court. This counterintuitive result stems from the

fact that when the majority is farther from the supervising court, the minority’s

dissent and the possibility of a supervising court’s intervention pose a greater

threat to the majority. Being aware of this, the minority demands a greater

concession in the negotiation over new legal rules, which may lead the major-

ity to prefer not publishing the decision and maintaining the status quo legal

rule over publishing with a dissenting opinion by the dissatisfied minority. We

test the implications of our model in light of review by both the Supreme

Court and en banc panels. We find some evidence of the predicted behavior.

Finally, we wrap up with a discussion of how understanding the publication

decision in conjunction with dissents enhances and changes our understanding

of judicial bargaining and outcomes.

Strategic Calculations and the Publication Decision

Panel Effects, Whistle-Blower Theory, and Dissent

Researchers have turned considerable attention to understanding how panel

effects influence circuit judges’ voting behavior and case outcomes more

generally. Panel effects refer to the phenomenon in which “the outcome of

both an individual judge’s vote and the panels’ decision may differ from what

we might expect if a single judge had decided the same case” (Kastellec,

2011, p. 422). There is a large and robust literature investigating the impact

of different panelist characteristics, including partisanship, gender, and race

(see, for example, Boyd, 2013; Boyd, Epstein, & Martin, 2010; Cross &

Tiller, 1998; Fischman, 2015; Kim, 2008; Sunstein, Schkade, & Ellman,

2004). One of the leading theories to explain panel effects among judges of

varying ideology is whistle-blower theory (Cross & Tiller, 1998). Whistle-

blower theory posits that the presence of an ideological minority on a panel

(sometimes referred to as a split panel) can induce the majority of a circuit

panel to comply with the preferences of a higher court when the minority and

the higher court are aligned (Cross & Tiller, 1998). The minority is so empow-

ered because she can write a dissenting opinion that increases the likelihood

that a supervising court will review and reverse the decision (see Black &

Owens, 2009; Caldeira et al., 1999; Cross & Tiller, 1998). The dissenting

opinion acts as a signal of noncompliance to a like-minded principal (see, for