Of Whites and men: How gender and race impact authorship of published and unpublished opinions in the US courts of appeals

Abstract

While authorship assignment has been studied extensively in the US Supreme Court, relatively little is known about such decisions in the intermediate federal courts. Moreover, what we know about circuit courts relates only to published opinions (those which constitute precedent under the doctrine of stare decisis and, thus, influence policy). Little is known about authorship of less influential unpublished opinions. Distinguishing between the costs, benefits, and risks inherent in authoring published versus unpublished opinions, we develop and test theoretical expectations about how demographic characteristics of opinion assignors and assignees influence authorship across opinion type. We conduct empirical tests using an exhaustive original dataset containing all authored dispositive circuit panel opinions issued in 2012. The results reveal that White and male judges are more likely to assign White and male judges to write published opinions and less likely to assign them to write unpublished opinions. The substantive sizes of the discrepancies are somewhat modest, but our results indicate that judges from historically disadvantaged groups have fewer opportunities to shape policy and they shoulder a disproportionately larger share of the routine chore of resolving individual cases.

The Intergroup Foundations of Policy Influence

“…Search and seizure cases are a good venue to test our hypotheses because they represent a broad area of criminal law in which identity is not as directly implicated as in, for example, sex or racial discrimination cases. Thus, to find background-specific effects in this area of law suggests that these effects are generalizable to other areas of law (see also Tillman and Hinkle, forthcoming). But, it is possible that race- and gender-specific effects are stronger in the areas of law in which judicial identities prime voting behavior, or that these effects dissipate in areas of law in which technical expertise trumps demographic concerns.…”

How policy influence varies with race and gender in the US courts of appeals

“…Men and women can have different perspectives based on their role in society, and, therefore, may bring different information and priorities to policy deliberations (Boyd et al, 2010;Fix and Johnson, 2017;Tillman and Hinkle, 2018). Similarly, and perhaps to an even greater extent, a person's race also shapes how they have experienced society and their view of the role of law within that society (Sommers, 2006;Tillman and Hinkle, 2018). Some of these different views manifest in terms of women and people of color tending to be more liberal.…”

“…Judges on federal circuit courts split their time between resolving important, policy-shaping cases and routine matters that do not have an impact on circuit law (Tillman and Hinkle, 2018). In order to keep up with an increasing volume of appeals, circuit courts developed the practice of designating some opinions as unpublished (Hazelton et al, 2016).…”

Deferring, Deliberating, or Dodging Review

“…Finally, consider those counterjudges sitting by designation. These judges may have less influence over deliberations because other judges are less willing to listen to a judge from another court or the panel 13 The most senior active judge wields the opinion assigning power (Tillman and Hinkle 2018). So, one might be concerned that this variable is capturing the assignment power.…”