It's the Journey, Not the Destination: Judicial Preferences and the Decision-Making Process

Abstract

Existing work analyzing judicial behavior has paid much attention to the relationship between political ideology and appellate case outcomes, ignoring for the most part the process that leads to such outcomes. This article seeks to fill this gap by exploring the relationship between the composition of appellate panels and their decision-making process. The results presented in the article suggest that panel ideology not only affects final case outcomes but also explains process-related variables, such as whether oral arguments are heard; whether opinions are published; the time taken to finalize an opinion; the ability to reach consensus; and reversal rates. Some of these process preferences are not readily explained by a panel's preference for a particular outcome – panels led by judges appointed by Democrat presidents take longer to prepare their opinions regardless of whether the outcome in case is liberal or conservative and choose to hold oral arguments more often than Republican-led panels when reviewing liberal as well as conservative lower court decisions.

However, some of these process preferences do interact with and mediate judges’ preferences over specific case outcomes. In particular, unified Democrat-led panels are more likely to publish their liberal opinions and reverse non-liberal lower court decisions, a behavior that differs not only from Republican-led panels but also from split Democrat-led panels. This relationship between panel composition and publication rates underscores the limitations of utilizing samples of published opinions, as do many empirical studies of appellate decision-making. To highlight this point, the article shows how the analysis of the relationship between the composition of a panel and the panel's decision whether or not to reverse a lower court opinion is substantially different in a sample of published opinions relative to unpublished ones, appearing to be more ideologically driven in the former.

Keywords: Politics and the judiciary; appellate panels; judicial decision-making; 9th Circuit