Panel Composition and Voting on the U.S. Courts of Appeals Over Time

Abstract

Studies of the the U.S. Courts of Appeals increasingly have moved beyond studying the voting behavior of judges in isolation from their panel colleagues and toward an approach that takes into account how panel composition can affect both individual judicial decisions and, as a result, the final decisions of three-judge panels. This paper makes two contributions to this burgeoning literature on panel composition and panel effects in the Courts of Appeals. I present the first assessment of the rates of various panel configurations over time on the Courts of Appeals, based on the partisanship of judges. I show that while long stretches of single-party control of the presidency in the first half of the 20th century often led to low degrees of panel heterogeneity, more frequent turnover of White House control in the last half-century has helped ensure that a majority of panels are composed of at least one judge from each party. Second, this paper presents the first longitudinal analysis of the relationship between panel composition and judicial behavior. Examining aggregate patterns in Courts of Appeals decisions from 1961 to 2002, I show that the difference in voting between unified Republican and unified Democratic panels is a relatively recent phenomenon, and only appeared beginning in the 1980s. Similarly, the existence of panel effects is also a recent development, exists mostly among Democratic appointees to the bench, and not Republican appointees. These results have important positive and normative implications for the study of the Courts of Appeals and for proposals to reform panel selection procedures.