| Review of: | Judging On A Collegial Court: Influences on Federal Appellate Decision Making by Virginia A. Hettinger, Stefanie Lindquist, Wendy L. Martinek |
|---|---|
| Reviewed By: | Robert M. Howard |
| Reviewed in: | The Journal of Politics |
| Date accepted online: | 14/01/2008 |
| Published in print: | Volume 69, Issue 04, Pages 1210-1230 |
Book Reviews
Public Law and Judicial Politics research over the past quarter century has been dominated by research on the United States Supreme Court. A search on JSTOR of the
There is a clear disparity. As important as the United States Supreme Court is to the development of law and politics in the United States, it decides less than 100 cases per year. For the 2005 October term for example it decided a total of 82 cases (Judicial Business of the United States Courts 2006, Table A-1). This compares to more than 60,000 cases filed in the United States Courts of Appeal the same year (Judicial Business of the United States Courts 2006, Table B).
Thus the publication of
The book is divided into six chapters including the conclusion. After using the first chapter to introduce some examples and discussion of vertical and horizontal dissensus the authors use the balance of the chapter to introduce some basic information on the United States Federal Courts of Appeals including the number and location of circuits and their location and importance within the federal judicial hierarchy.
In chapter 2 the authors introduce the major theoretical perspectives on decision making. It is from this section that they derive the components of the subsequent analyses in chapters 3, 4, and 5, which form the heart of the book. They begin with the attitudinal model positing that decades of research have shown how ideology is an important determinant in explaining judicial outcomes. Then, noting the institutional differences of appellate courts and the Supreme Court, introduce concepts beyond attitudes including such factors as judicial characteristics, case characteristics and circuit characteristics, and then discuss how differences in these characteristics can influence the vertical and horizontal dissensus beyond the influence of attitudes.
Chapters three, four and five then use these various characteristics to explain horizontal and vertical dissensus. Chapter three, entitled "Why Do Judges Write Separate Opinions?", examines the probability of a circuit court judge writing a separate concurring or dissenting opinion. In addition to finding that attitudes are strongly correlated with the issuance of a concurring or dissenting opinion, the authors find that circuit norms-the prevalence of separate opinions-have the "widest effect" in influencing additional concurrences and dissents (p. 67). The presence of an amicus brief is also very important, increasing the probability of a concurring opinion by twice as much and a dissenting opinion by more than fifty percent.
In Chapter Four the reasons for dissent are analyzed. The authors introduce a simplified strategic model of dissent which leads to the idea that ideological distance alone is not a sufficient condition for a dissent. Simply put, a potential dissenter has to be better off by dissenting than not dissenting. There are situations where, although ideological disagreement is present, the dissenter is no better off dissenting than signing off on the opinion. For example, if the majority opinion writer is ideologically in the middle of the potential dissenting judge and the reviewing body, whether it is the entire circuit sitting en banc, or the Supreme Court, the judge has little incentive to dissent because his position would not be adopted by entire circuit, or by the United States Supreme Court on appeal.
However, they find no support for strategic motivations in any of the models they use to test strategy vis-à-vis the Circuit Court or the United States Supreme Court. The only explanatory variable of statistical significance is that of ideological disagreement. In fact none of the models have significant explanatory power. The authors speculate that the non discretionary nature of the dockets of the Federal Courts might account for the lack of strategic interaction. These judges simply do not have the time to engage in strategic calculations. To some extent the models show the difficulties scholars have in testing strategic considerations, but since no other theoretical explanation is offered or tested, the reader is left with a very incomplete explanation of when and why a dissenting opinion is likely to occur.
Finally in Chapter Five the authors examine vertical dissensus and test a model to explain reversals of District Court decisions. The model performs better than the models in Chapter Four, although not as well as the model in Chapter Three. In the case of this type of dissensus, institutional, case and circuit characteristics all play a role in generating reversals. Among the interesting findings are that when a Chief Judge is the majority opinion writer there is a greater probability of reversal, while conversely when a designated District Court judge sitting by assignment is the majority opinion writer there is decreased probability of reversal.
The book is very readable and accessible. Although full statistical models are offered in the appendix of each chapter one can easily understand the book with minimal knowledge of statistical methodology. I suspect the book, or at least the analytical chapters, will be a welcome addition to graduate courses in Judicial Politics when those courses have sections dealing with lower federal courts. Given the paucity of material on appellate courts, it is therefore a welcome addition to the literature.
Having said that, there is little that is new, or startling, in the book. There is no great theoretical advance, nor any new measurement of ideology, judicial prestige or any other variable. To be sure there are many interesting findings, including the importance of ideology in issuing a dissenting opinion and the corresponding lack of importance of strategic calculations. The models thus confirm the importance of ideological disagreement as an important reason for dissensus. However, there is little insight into any other theory that would explain the disagreement within a circuit and between an appellate court and the district court.
To be fair, this was not the intention of the authors. The idea was to offer an explanation of dissensus and they have succeeded. However, two of the chapters offer models where little of the variance is explained. This leaves the reader wondering what else is going on that would explain dissensus. All this is a way of saying that as enjoyable as this book is, there is much more research that is needed in this area and the book is certainly not the definitive word on appellate court decision making.