This week, we're taking a short break from our usual number-heavy analysis for another glance at some of the vast academic literature on the analytic-driven analysis of appellate decision making. This is a four-part post – two here and two over at the California Supreme Court Review – sampling some of the literature on "panel effects."
Of course, virtually all appellate decision making takes place in panels of judges – sometimes three, occasionally five, frequently seven or at the U.S. Supreme Court (or a Circuit en banc), nine or more. It's easy to fall into the trap in assessing an appellate panel of treating it like a political focus group. For example, say I'm representing a defendant, and I learn that my panel consists of two Republican nominees and one Democrat, I might think that's a reasonably favorable panel. But the implicit assumption built into that statement is that none of the judges' votes will be impacted by any of the other judges.
Although most political votes are cast by voters who don't know each other or care about others' opinions, that's not always true. Studies have shown that if you put a Republican, for example, in a room full of Republicans, his or her views will drift further right than they would otherwise have been. Put the Republican in a room surrounded by Democrats, and the opposite effect is observed – the Republican drifts more moderate. Repeat the experiment with a Democratic voter, and the effect flips – more conservative in a room full of Republicans, more liberal with other Democrats.
Appellate panels, of course, are quite different. Often (with the exception of the Ninth Circuit), the judges know each other well, and may have been working together for years. They presumably have a shared commitment to something they think of as the "law of the Circuit/state/court." Many believe that unanimity has an intrinsic value in reinforcing the moral authority of their court. Their vote isn't secret – they'll have to look a colleague in the eye, at least figuratively speaking, and tell him or her why he or she is wrong. And if they don't succeed in convincing their colleague, they'll have to write an opinion explaining how thoroughly wrong their colleague is – knowing that it's going to be preserved in thick hardbound books in the library on the computer screens of any lawyer in the country who wants to see it for pretty much all eternity.
One can imagine that might temper your enthusiasm for constantly dissenting in a hurry.
So that's where the literature of "panel effects" comes in. How much difference does the composition of your panel really make? And if you're trying to predict the vote of Judge A, do you only want to know his or her philosophy – or are the leanings of the other judges on the panel a powerful predictor of Judge A's vote? We'll begin our review next time.
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