Public Release: 

District judges serving on appellate courts act as followers, not leaders, study finds

Ohio State University

COLUMBUS, Ohio - Faced with a shortage of judges, U.S. Courts of Appeals for years have enlisted District Court judges on a temporary basis to help decide cases.

But new Ohio State University research suggests the use of district justices may affect how these courts operate. Results showed District Court judges tend to be followers, and to act less assertively than appellate judges when dealing with labor law cases.

The District Court judges are less likely than appellate judges to write signed majority opinions and dissents. Their personal and professional backgrounds are also less likely to contribute to their decision making than is true for appellate judges.

The results are both reassuring and troubling, said James Brudney, co-author of the study and a professor at Ohio State's Moritz College of Law.

Some may find it reassuring that these district judges are deferring to their more experienced colleagues on the appeals courts, Brudney said, adding "such service enables shorthanded courts faced with growing caseloads to function more efficiently." At the same time, our system of justice assumes that all the judges on an appeals case perform as peers, actively debating the merits of the issues before them.

"It is somewhat unsettling that district judges are acting as followers rather than co-equals when they serve on the appellate court," Brudney said.

"The federal appellate court system contemplates a panel of three judges exercising independent and critical judgment as part of a decision making process that is intellectually vigorous as well as collegial. Our results suggest that dynamic isn't occurring when there is one member who is a district judge."

Brudney conducted the study with Corey Ditslear, a graduate student in political science at Ohio State. Their study was published in a recent issue of the journal Law & Society Review.

Since 1980, District Court judges have helped decide more than 75,000 Court of Appeals cases - nearly one of five merits decisions. This study is based on all 1,224 U.S. Court of Appeals cases decided between 1986 and 1993 that reviewed unfair labor practice decisions by the National Labor Relations Board. The cases included 5,463 votes by appellate judges and 571 votes by district judges (roughly 9 percent of the total votes). In all, 223 appellate judges and 105 district judges were involved in cases examined by the study. District judges participated in 17 percent of cases decided on their merits by three-judge appellate panels during the period covered by the study.

The results showed that appellate and district judges favored the union in cases they decided at virtually identical rates (76 percent vs. 77 percent). However, the role district judges played was substantially different.

An appellate judge has a 12 percent probability of writing a majority opinion, the study found. But district judges have only an 8 percent probability.

The probability that a judge will write a dissent declines from 0.9 percent for appellate judges to 0.3 percent for district judges - three times less.

"To the extent that they are not writing many majority opinions and almost no dissents, district judges are simply going along with the decisions - they are not leading and they are not deviating," Brudney said.

Another indication of district judges' follower status comes from an analysis of how their professional and personal backgrounds affected their rulings. In a previous study, Brudney and a colleague found that the backgrounds of the appellate judges - including the college they attended, whether they had held elected office, their prior work experience on labor law matters, and their gender and religion - were associated with the likelihood they would support or reject union legal positions.

In this study, the researchers found that district judges' background had significantly less impact on how they ruled than it did among appellate judges.

"Appellate justice involves reasoning from neutral principles, but there is inevitably some discretion involved in deciding particular cases, and the exercise of that discretion ought to be informed by the experiences and perspectives that each judge brings to court," Brudney said. "If judicial background wasn't important, we wouldn't have the broad-based support we do as a society for a diverse federal bench."

Given that, he said it is "troubling that district judges seem to be subordinating their own background and experiences when they participate in appellate decisions. They seem to be following the lead of appellate judges."

However, there were some cases in which the background of district judges did affect their voting, and in ways different than that of appellate judges. For example, appellate judges who had held elected office were somewhat more likely to rule in favor of unions, but district judges who had held elected office were more likely to rule against union positions.

Brudney suggested the reason may have to do with the types of elected office experience involved. The appellate judges in this study were more likely to have been in Congress, on school boards, or elected in large cities, all experiences that would tend to expose them to unions and union members. By contrast, district judges in this study who held elected office were more likely to have been local prosecuting attorneys or rural state legislators, positions where unions either were not viewed as favorably or had little impact.

There may be a variety of reasons why district judges tend not to be outspoken or take leadership roles in the appellate courts, Brudney said. For example, presiding judges may not want to burden visiting judges with the task of writing majority opinions. Also, district judges may decline invitations to write majority opinions because they are uncomfortable taking such a visible role reviewing decisions made by fellow district court judges.

Whatever the reason, Brudney said, the diffident role of district judges may be affecting appellate justice.

While this was the first study to examine in such depth the impact of district judges on appellate courts, many judges and scholars have expressed worries about the issue, Brudney said. In fact, the D.C. Circuit stopped using district judges on appellate panels in 1991 because of concerns that district judges may change the dynamic of appellate courts, he said.

Brudney noted that this study involved only cases involved with one agency - the NLRB. More study would be needed to see if the results are similar for cases involving other agencies, or cases involving trial court decisions. But the results show the need to consider the role of district judges on appellate courts.

"The results of our study suggest that there is a need to consider more clearly the possible tradeoffs between efficient judicial administration and a less robust decision making process," he said. The study was supported by The Fund for Labor Relations Studies and Ohio State.

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Contact: James Brudney, (614) 292-0795; Brudney.1@osu.edu

Written by Jeff Grabmeier, (614) 292-8457; Grabmeier.1@osu.edu

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