The Small Group Context: Designated District Court Judges in the U.S. Courts of Appeals

Abstract

Decision making in the U.S. courts of appeals occurs primarily in three‐judge panels. A substantial number of cases are decided by panels that include a judge who is a district court judge serving temporarily on the appeals bench. This means that court of appeals decision making is often a function of small groups with temporary members. Here, we examine whether designated district court judges behave differently than their court of appeals colleagues when they cast their votes in cases they are deciding as members of three‐judge appellate panels. In doing so, we suggest a profitable direction for theory building vis‐à‐vis judicial decision making. Our analysis of the ideological direction of the votes judges cast, as well as the variance in those votes, indicates that judges on three‐judge panels are influenced by the preferences of their fellow panelists, and that designated district court judges, while no more variable than their court of appeals colleagues, are more susceptible to the influence of their peers than are regular members of the courts of appeals in a nontrivial number of cases.

Strategy and the Decision to Dissent on the U.S. Courts of Appeals

“…The first set of variables corresponds to attributes of judges. Designated district court judges serving on courts of appeals panels may be more likely to show deference to their colleagues by deferring to the majority (Collins and Martinek, 2011;Hettinger, Lindquist, and Martinek, 2006). To capture this possibility, we include a Freshman variable, scored 1 if a judge was serving during his or her first two years of service and 0 otherwise (Gryski and Zuk, 2009).…”

The Voting Behavior of Minority Judges in the U.S. Courts of Appeals

“…Most notably, "it provides the ability to use information about the nature of the intra-cluster dependence to recover more precise estimates" (Zorn, 2006, p. 333). Since I am interested in individual-level variables and because judges appear in the data set multiple times within and across cases, I chose to cluster around each individual judge (Collins & Martinek, 2011;Collins & Moyer, 2008). According to Zorn (2006), "there is good theoretical reason to cluster around the judge since judges attempt to maintain consistency in their voting records" (p. 333).…”

“…However, judges do not make decisions in a vacuum (Collins & Martinek, 2011). The strategic model of voting behavior, for example, posits that judges "realize that their ability to achieve their goals depends on the consideration of the preferences of other actors, the choices they expect others to make, and the institutional context in which they act" (Epstein & Knight, 1998, p. 10).…”

Strategic Anticipation of En Banc Review in the U.S. Courts of Appeals

“…Although the federal circuit courts are subordinate to only one court, circuit judges face potential reversal from two sources. The vast majority of appeals filed in the federal circuit courts are resolved by randomly assigned panels of three judges (Collins and Martinek 2011;Kim 2009). Such panel decisions may be reviewed either by the U.S. Supreme Court or by the full circuit in an en banc proceeding.…”