Panel Effects and the Independent Vote Assumption

For people interested in judicial decision-making, one of the most interesting findings in the last decade was the evidence that judges on panels do not make decisions independent of one another. In fact, the political ideology of co-panelists has a strong connection to how an individual judge will vote in many cases. These “panel effects” are now well-known among scholars who are not regular readers of empirical work regarding the courts. However, the details, magnitude, and explanation for these panel effects are still disputed and ambiguous.

The so-called “whistleblower” panel effect occurs when a judge wants to draw attention to the actions of co-panelists that might be acting in an ideological extreme manner. In contrast, strategic incentives often point in a different direction because dissents rarely serve any function at the federal appellate level when en banc panels are infrequent and Supreme Court review even less likely. There are also strong incentives toward consensus among judges in the same circuits because of the limited value of dissents and the upsides to collegiality among judges that will serve on panels hundreds of times together. To these theories of panel decision-making, I wanted to share one of my recent findings.

In my studies of judicial activism and ideology at the federal appellate level, I created measures which concerned the inter-court relations of district and appellate courts. In doing so, I initially sought to control for panel effects among the judges being studied. However, as I assumed that the district court judge was essentially a hidden fourth member of the appellate panel, I decided to throw in the district judge’s ideology (as determined by the party of the appointing President). And in doing so, I found that the district court’s party connection seemed to have had an effect on the votes of the panelists.

There are three basic political arrangements of a judge’s co-panelists and the district court judge being reviewed: 1) they are all of the same party; 2) the co-panelists are of the opposite party as the district judge; and 3) the co-panelists are split with one being aligned with the district judge. As it turns out, a judge’s decision to affirm or reverse the district court was connected to which of the three arrangements existed as illustrated in the figure below.

While I included the above finding in my two recent articles in order to control for the varying alignments encountered by each judge, I did not discuss any explanations for the result. I have some ideas and have begun working on an article related to panel effects generally and the district court’s role in particular. So, as my time at Concurring Opinions has come to and end, I welcome any and all ideas you all might have about why the co-panelists having the opposite ideology of the district court increases the rate at which a judge votes to reverse.

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