Separate Opinion Writing Under Mandatory Appellate Jurisdiction: Three‐Judge District Court Panels and the Voting Rights Act

Abstract

Most of the empirical work on separate opinion writing by lower federal court judges examines the U.S. Courts of Appeals. Given the Supreme Court's discretionary jurisdiction, it is argued that dissenting opinions operate as a cue signaling that a case is worthy of review. Concurrences, on the other hand, allow judges to join dispositional majorities while still expressing differences in legal reasoning from the majority. Likely in an effort to minimize dissent, the behavior of circuit court judges is found to be less influenced by ideology when potential dissenters serve with them. Despite the specter of Supreme Court review, these works generally find that the motivation to write separately is based largely in ideologically differences among panelists and less so on preferences of the Supreme Court. What, however, does separate opinion writing look like when the Court's jurisdiction is mandatory, as it is over three‐judge district court panels? Among other uses required by law, these district court panels are used to adjudicate cases arising under the Voting Rights Act of 1965. These panels also differ from the traditional judicial structure by placing district court judges, who traditionally decide cases individually, in a multimember setting with another district court judge and a circuit court judge. Examining separate opinion writing on these panels, we find that ideological distance from the majority opinion writer is still an important factor. This, however, is conditioned by the preferences of the Supreme Court, which exert a much stronger influence over behavior than they do in the traditional appellate court setting.

Congressional Constraint? The Review of In Absentia Immigration Removal Orders in Federal Circuit Courts

“…Despite clear provisions to reduce the role of judicial discretion in deciding and reviewing in absentia cases, could it still be that circuit judges’ policy preferences affect their decision-making in the review of motions to reopen in absentia orders? Empirical evidence of preference-based judging in federal circuit courts abounds across a variety of case types (e.g., Bowie and Songer 2009; Bowie, Songer, and Szmer 2014; Broscheid 2011; George 1998; Haire 2006; Mak and Sidman 2020, 2022; Nelson, Hazelton, and Hinkle 2021; Sunstein et al 2006). This also holds for judging in the immigration context, both in immigration courts (e.g., Asad 2019; Miller, Keith, and Holmes 2015a; Ramji-Nogales, Schoenholtz, and Schrag 2007; but see, e.g., Kim and Semet 2020) and in circuit courts acting in a judicial review role (e.g., Hamlin 2014; Law 2005; Law 2010; Westerland 2009; Williams and Law 2012; but see Gill, Kagan, and Marouf 2019).…”

Contemporary Challenges to the Regulation of Religions in Europe

“…Previous research in the US has shown that ideological distance is likely to increase the probability of judicial dissent in certain circumstances (Epstein et al, 2010). In other words, the ideological position of the judge in the Court influences the decision to dissent (Mak & Sidman, 2020). Furthermore, empirical research in the US has shown that judges can be categorized into left-wing and right-wing ones (Pritchett, 1943) or that the ideological composition of a court is likely to influence the outcome of death penalty cases (Beim & Kastellec, 2014).…”

How the Trump Administration’s Quota Policy Transformed Immigration Judging

“…Like other judges faced with judging in a complex environment, immigration judges are not unconstrained; rather, they must be strategic when assessing when and how to be mindful of their competing interests-independence versus potential political constraints-when making decisions. We have long known, for example, that judges and justices in the United States "prefer Court opinions and legal rules that reflect their policy preferences" (Maltzman, Spriggs, and Wahlbeck 2000, 17) and that their career backgrounds and identity affect their legal worldview and decision-making (e.g., Bowie and Songer 2009;Bowie, Songer, and Szmer 2014;Boyd, Epstein, and Martin 2010;Epstein, Landes, and Posner 2013;Glynn and Sen 2015;Harris and Sen 2019;Hinkle 2015;Law 2005;Mak and Sidman 2020;Nelson, Hazelton, and Hinkle 2022;Williams and Law 2012;Zorn and Bowie 2010). Immigration judges, like other U.S. judges, will be motivated to accomplish their goals-ideological or other-while on the bench.…”