Judge Ginsburg on High Number of Dissents on the D.C. Circuit (Hint: It was Mikva and Wald)

December 9th, 2013

Judge Douglas H. Ginsburg, who has taken Senior status on the D.C. Circuit, offers a unique insight into the D.C. Circuit in this review of Lee Epstein, William Landes, and Richard Posner’s book, The Behavior of Federal Judges.

Here is the opening:

A federal judge is perhaps the least qualified professional to shed light on a book about the behavior of federal judges. The authors of The Behavior of Federal Judges1 are a law professor steeped in the quantitative methods of contemporary social science, an economist who has long studied legal institutions, and perhaps the only federal judge competent to collaborate with them as an equal on a book subtitled A Theoretical and Empirical Study of Rational Choice. In attempting to comment upon their work I, as a worker bee of the federal judiciary, am relegated to anecdotal and crude quantitative observations that cannot possibly refute, or even correct, any of the authors’ important statistical findings. It may be possible, however, to illuminate two of the more remote corners of the authors’ edifice.

The United States Court of Appeals for the District of Columbia Circuit has been a very collegial court for the past 20 years.2 I was struck, therefore, by the authors’ finding that this court, of the 12 courts of appeals they studied,3 had the second-highest “dissent rate,” 4.6%, over the period of 1990– 2007 for cases decided on the merits.4 Only the judges of the notoriously factious Sixth Circuit5 dissented more often at 4.8 percent.6 By contrast, the Eleventh Circuit had the lowest dissent rate at 1.0 percent.7 I was struck, too, by the authors finding a “significant ideological influence on court of appeals decisions,”8 but that finding is not specific to the D.C. Circuit.

I was surprised by the high dissent rate in the D.C. Circuit because I was under the impression that the high degree of collegiality here obviates any need or desire to dissent if common ground can be found.9 Consider the conferences we hold immediately after oral argument: Unlike the Supreme Court and some other courts of appeals,10 the judges here do not simply announce their views seriatim but rather discuss the issues and, if they disagree initially, reason together in an effort to resolve or at least to narrow those differences.11 From time to time a judge will say that, although he is not convinced his two colleagues are right, he will not dissent because the issue is not of importance to the path of the law or, more often, that he will withhold judgment in the hope the opinion will be written in a manner that makes it possible for him to sign on.12 My unquantified view of collegiality in the D.C. Circuit is not inconsistent with the authors’ more formal model of a judge’s decision to dissent. They analyze the decision to dissent in terms of benefits and costs: Benefits of dissenting include promotion of the judge’s view of what the law is or should be, greater scrutiny of the majority’s position by the Congress and the Supreme Court, and any associated boost to the judge’s reputation;13 costs include the work of writing the dissent and the work imposed upon the majority to respond.14 A judge benefits less from dissenting if his colleagues are willing to consider his legal views and perhaps adopt at least

some of them in the opinion, and he in turn will be less inclined to accept the costs of dissenting upon such a show of courtesy from his colleagues. The unwelcome distinction of having the second-highest dissent rate among the courts of appeals struck me, therefore, as a surprise warranting a closer look at the authors’ calculus of dissent.

What a beautiful pun on Calculus of Consent. And a very George Mason pun at that. I studied with Judge Ginsburg while at GMU, and it was one of the best classes in law school. This year, Judge Ginsburg has become a full-time professor at my alma matter. What a coup for GMU.

And, Judge Ginsburg offers a few thoughts on the high dissent rate from 1998-2007.

Looking at the dissent rate year by year,21 I found a significant drop off beginning in 1997, followed by relatively level and much lower rate from 1998 to 2007. Indeed, the average dissent rate in the first eight years of the study period (1990- 97) was 5.5 percent, whereas it was only 3.6 percent for the next 10 years (1998-2007). Upon closer inspection, I noticed that 20 percent of the dissents in the entire period were filed by two judges; one left the court in July 1994, the other in late 1999.22 But for the dissents of those two judges, the dissent rate for the first eight years would have been 3.9 percent, and the rate for the overall 18-year period covered by the authors would have been 3.7 percent instead of 4.6 percent. Without the contribution of those two judges, the D.C. Circuit’s dissent rate would drop from the second to the fourth-highest of the courts of appeals.23

In case you needed a hint–because Judge Ginsburg is to kind to name names–Judge Abner Mikva was Chief Judge until 1994, when he left the court to become President Clinton’s counsel. The other is Judge Patricia Wald, who left the court in 1999. Ahem. Both Carter appointees were responsible for an inordinate number of dissents over the period. Note Judge Ruth Bader Ginsburg was not among that group.

Mikva was replaced by Merrick Garland and Wald was replaced by Thomas Griffith.

Ginsburg heaps praise on Mikva’s successor, Judge Edwards, who cut down on the divisiveness:

When the first of the two frequent dissenters left the court, it had a reputation for being contentious; a number of local newspaper gossip columns had run articles reporting rumors of bad blood among the judges.24 At that point, however, Harry Edwards became the new chief judge and made it a priority to restore collegiality among the judges; that he did with remarkable success, and his efforts have been continued by the three chief judges since. His becoming chief judge marked the end of the court’s practice of seating visiting judges. In relatively short order, the number of times the full court sat en banc to rehear a case previously decided by a panel of three judges dropped significantly: The number of rehearings en banc averaged six per year in the 1980s,25 three in the 1990s,26 and less than one in the first decade since.27 In my view, these declining numbers reflect in part the increasing level of mutual trust and respect among the judges.