Administrative Law Judge Eric Lipman has featured an interesting piece of legal research on his blog, “Within the Scope.” He notes that Harvard Law School Professor Cass Sunstein has concluded that the ideology of a judge’s colleagues is a better predictor of an outcome than the ideology of a judge. He argues that is because dissents are often futile and difficult to produce. Sunstein and colleagues studied 4,500 federal Court of Appeals three-judge panel decisions on administrative law that have been issued since 1995.
Lipman quotes Sunstein: “Dissenting opinions might also cause a degree of tension among judges, a particular problem in light of the fact that judges must work together for many years. According to informal lore, a kind of implicit bargain is struck within many courts of appeals, in the form of, “I won’t dissent from your opinions if you won’t dissent from mine, at least not unless the disagreement is very great.” All of these points help to account for the great power of “the ideology of one’s colleagues” in producing judicial votes.
Lipman continues, “Comparing actual panel votes against a stereotypically liberal position (and the numbers likewise work in reverse if you were to measure panel members against the stereotypical conservative position), Sunstein asserts that the greater the concentrations there are of particular types of appointees on an appellate panel (whether Republican or Democrat) the greater the movement there will be away from a neutral position. Thus, the more unified panels of Republican appointees there are, the more conservative results; the more unified panels of Democratic appointees there are, the more liberal the outcomes.”
Reasonable minds can differ on whether this is revelatory or a dog-bites-man conclusion. Lipman finds it “chilling.” He writes, “Are we really at the point where we say: ‘Tell me who has been assigned to the three-judge panel and I’ll tell you whether or not the agency acted lawfully?’”