Diversity, Deliberation, and Judicial Opinion Writing

Abstract

Underlying scholarly interest in diversity is the premise that a representative body contributes to robust decision-making processes. Using an innovative measure of opinion content, we examine this premise by analyzing deliberative outputs in the US courts of appeals (1997-2002). While the presence of a single female or minority did not affect the attention to issues in the majority opinion, panels composed of a majority of women or minorities produced opinions with significantly more points of law compared to panels with three Caucasian males. In the American judiciary, the deliberative nature of collegial courts is expected to identify and correct legal errors through appellate review and yield a higher-quality, reasoned judgment than the decision of a single (trial) judge. One federal appellate judge describes collegiality as "a process that helps to create the conditions for principled agreement, by allowing all points of view to be aired and considered" (Edwards 2003, 1645). During these deliberative processes, judges on a collegial court do not simply vote on an outcome; they must also agree on the holding of the court. If the processes are robust, one would expect to see some evidence of deliberations in the majority opinion. The legitimacy of the court's decision may depend on whether the written justification convinces the public that the decision was reached by the reasoned application of neutral legal principles (Carter 1979). As described by District of Columbia Circuit Judge Edwards (2003, 1662), "Coming to a multi-judge agreement is not a straight-The authors would like to thank Donald Songer, Stefanie Lindquist, Robert Christensen, and John Szmer as well as the editor and anonymous referees for their helpful comments and suggestions on earlier versions of the article. Shawn Treier would also like to acknowledge the support of the US Studies Centre at the University of Sydney. Laura Moyer would like to acknowledge the support of Louisiana State University.

Bias and Judging

“…In the state criminal trial court context, Harris (2018) finds that judges sentence black and white defendants more equitably as they gain black colleagues; black judges become less punitive toward black defendants and white judges become less punitive toward black defendants and more punitive toward white defendants as more black judges join the bench (Harris, 2018). Further evidence of this impact is provided by Haire, Moyer and Treier (2013), which documents that appeals panels that have majority of minority (or female) judges issue rulings discussing a greater number of legal issues.…”

Delayed but not derailed: legislative compliance with European Court of Human Rights judgments

“…As a consequence, in contexts where compliance with court decisions is contested, judgments that contain dissent do not carry the same weight and are less likely to be complied with. This is the case even if dissent on the bench actually increases the quality of the majority judges' written reasoning, which has been suggested in the literature (Haire, Moyer and Treier 2013).…”

“…Judicial dissent can, moreover, be seen as "an expression of judicial innovation and creativity which contributes to the evolution of the law" (Vitale 2014: 87-88). A dissenting judge may be an important corrective to the majority (Sunstein 2005), and may if nothing else ensure that the majority's position becomes better argued as it is forced to confront an opposing view (Haire, Moyer and Treier 2013). 2 On the other hand, several arguments are advanced against permitting publication of judicial dissent.…”

“…It is important to stress that this effect may exist even if dissent actually increases the legal quality of a judgment. Some scholars have suggested that judgments affected by dissent are better argued, because the majority will take the dissenting view into account (Haire, Moyer andTreier 2013, Vitale 2014: 87). Knowing that dissent may make the implementation of a decision more challenging may, moreover, motivate the majority judges to write even more high-quality judgments.…”

The Dilemma of Dissent: Split Judicial Decisions and Compliance With Judgments From the International Human Rights Judiciary

“…As a consequence, in contexts where compliance with court decisions is contested, judgments that contain dissent do not carry the same weight and are less likely to be complied with. This is the case even if dissent on the bench actually increases the quality of the majority judges' written reasoning, which been suggested in the literature (Haire, Moyer, and Treier 2013).…”