Judicial Leadership on the Court of Appeals: A Probability Analysis of Panel Assignment in Race Relations Cases on the Fifth Circuit

Abstract

Since courts of appeals use a three-member panel system for deciding cases, it is entirely possible for a decision of the court to represent a minority preference of the sitting active judges. This fact is crucial in understanding the role played by the intermediate appellate courts in the implementation of the Supreme Court's desegregation decisions. It has been widely accepted, for example, that the fifth circuit was vital in achieving a national goal of integration in reversing decisions of locally oriented district courts. But in explaining the role played by the fifth circuit it is necessary to determine whether or not the policy of the fifth circuit was engineered by a majority, in which case it would be legitimate to assume that it held a perspective more in tune with a national orientation than the local positions taken by the district courts, or if the policy was the outgrowth of a minority of the court made possible by the panel system. Indeed the specific charge had been levied against that court that Chief Justice Tuttle had purposefully gerrymandered the panel assignments in order to assure pro-civil rights decisions. With the aid of probability analysis we assessed the validity of the charge. Our data show that from 1961 to 1963 a minority of the active judges decided a disproportionate number of race relations cases and that these decisions were usually in support of the black plaintiffs. Moreover, the relationships were statistically significant; indeed, such a distribution would occur by chance one time in ten thousand! By contrast, our data show that such a skewed distribution did not occur when a sample of cases under a previous chief judge was analyzed.