Collegial Decision Making in the U.S. Courts of Appeals

Abstract

In July 2017, I participated with a number of other judges from various courts in both civilian and common law jurisdictions in a conference at All Souls College, University of Oxford, on “Collective Judging in Comparative Perspective.” The purpose of the conference was to explore the internal decision-making processes of modern collegiate courts in a comparative perspective. Participants were asked to share and discuss their respective views from the bench, focusing on procedural rules and conventions within their own judicial systems to facilitate comparative discussion of the themes which arise. In preparation for the conference, I asked every Circuit Chief Judge to fill out a questionnaire regarding how her or his court pursues decision making. After completing my research on collegial decision making and reviewing the survey forms, I wrote this paper, entitled “Collegial Decision Making in the U.S. Courts of Appeals.” In the paper, I note that too often commentators attempt to equate the decision-making practices of the U.S. Courts of Appeals with those of the U.S. Supreme Court. This is a mistake because our organizational structures and judicial responsibilities are strikingly different. And, unlike the Supreme Court, most of the decisions issued by the Courts of Appeals are unanimous. For the terms between 2011 and 2016: The Courts of Appeals issued over 172,000 total decisions on the merits. Only 1.3% of these decisions included a dissent. Less than 1% of the total decisions included a concurring opinion. And 90% of our “published” decisions were issued without a dissent. During the same time period: 56% of the decisions issued by the Supreme Court included a dissent; 40% of the signed decisions included a concurring opinion; and only 46% of the Supreme Court’s decisions were unanimous. The extraordinarily high number of unanimous decisions issued by the Courts of Appeals says a lot about our decision making. This paper explains how Court of Appeals judges pursue their decision-making responsibilities. In particular, the paper considers the methods and quality of collegial decision making in addressing the following questions: What procedures and policies do the courts follow to facilitate decision making? Do decision-making practices facilitate genuine and effective efforts by the judges to reach unanimous decisions? How should we measure the quality of the decisions rendered by the Courts of Appeals? The paper also considers the effects of collegiality on collegial decision making, addressing the need for collegiality; how a court instills and maintains collegiality; and the potential threats to collegiality. The survey responses from the Chief Judges are included in the paper, along with ample data confirming that very few dissenting and concurring opinions accompany the decisions issued by the U.S. Courts of Appeals.