Consensus on the United States Courts of Appeals: Illusion or Reality?

Abstract

Despite major advances in the study of judicial behavior, one problem that still affects much research concerns the dependence upon the nonunanimous decision as the unit of analysis, and the resultant effect of this upon the inferences drawn from such studies. Often, the expression of conflict on collegial courts is dependent upon the decisionmaking rules used. One such example is the United States Courts of Appeals. The dissent rate on these courts is approximately six percent. By utilizing research strategies that gear themselves to the manner in which dissensus is manifested on these courts, it is possible to tap the mine of data represented by the other ninety-four percent. Focusing on criminal appeals, this study examines dissensus that exists in unanimous decisions but which is usually masked by the three-member rotating panel system. The study of judicial decisionmaking and behavior has made substantial progress over the last two decades in developing theoretical and empirical propositions that describe the processes shaping judicial policy. Yet there are certain obstacles to doing research in this area, recognized in the subfield's formative years, that have not been removed. This is not to suggest that important research has been precluded. Rather, it merely indicates that debate continues over certain assumptions that are fundamental to the endeavor, and that we should occasionally turn our attention to these problems in order that we not lose our scholarly perspective. One such problem in much of the judicial behavior literature concerns the manner in which conflict on an appellate court shall be operationalized. Satisfying, as it does, the threefold criteria of quantifiability, reliability, and accessibility, the nonunanimous decision has, perhaps by default, emerged as the primary measure of conflict on appellate courts. We suggest by this statement that nonunanimous decisions are utilized largely for convenience' sake. While this may appear flippant, those not accustomed to doing judicial behavior research must recognize that formal votes are virtually the only hard data upon which quantitative analysis can be based. Thus, formal votes are the vehicle by which portraits of conflict are constructed, notwithstanding the fact that they represent only one of several stages in the decisional process, albeit perhaps the most critical one.