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

The Small Group Context: Designated District Court Judges in the U.S. Courts of Appeals

“…3 3 Though random assignment is not a function of statutory command, random assignment is the generally accepted norm and, indeed, is necessitated by circuit rules in some courts of appeals (Brown & Lee 2000). There is evidence to suggest, however, that random assignment has not always been the norm (Atkins & Zavoina 1974). Charges of “panel stacking,” such as in the case of the panel assigned to hear the University of Michigan affirmative action cases, Gratz v. Bollinger , 539 U.S. 244, and Grutter v. Bollinger , 539 U.S. 306, continue to surface on occasion (Hettinger et al.…”

Judicial Decisionmaking and the Use of Panels in the Canadian Supreme Court and the South African Appellate Division

“…As detailed above, several researchers have investigated the possibility of this type of behavior on the U.S. Courts of Appeals during the desegregation era. These studies find some evidence of the chief judges of the Fifth Circuit gerrymandering panels (Atkins & Zavoina 1974;Howard 1981;Barrow & Walker 1988). Thus, judges with policy preferences that the chief justice assumes to be closer to that of his own should be more likely to be assigned to panels.…”

“…Interest in panel assignments in the United States has been primarily confined to studies of the federal courts of appeal (the only federal courts to hear cases in panels) during the desegregation era. Several studies of possible influences on these assignments discovered that while assignments were thought to be random in most courts, in the Fifth Circuit at least, the chief justice appeared to be influenced by his policy preferences when assigning justices (Atkins & Zavoina 1974;Barrow & Walker 1988;Howard 1981). Further, scholars have suggested that while policy preferences may not have an impact in all courts, the panel assignment process could still be classified as nonrandom since considerations of seniority and expertise may influence chief justices (Howard 1981).…”

Implementation of Judicial Decisions

“…Another constraint is imposed by the plurality of membership on appellate courts, which makes policy-blurring compromise likely (Howard, 1968). On courts which divide into panels, this problem is aggravated by the fact that different groups of judges may decide successive cases concerned with a particular question (Richardson and Vines, 1970: 122-125;Atkins and Zavoina, 1974).…”