Judicial Ideology and the Decision to Publish Voting and Publication Patterns in Ninth Circuit Asylum Cases
Law, David S., Judicature
Evidence from the Ninth Circuit suggests that some judges may attempt to steer the evolution of precedent by favoring publication of cases that lean in a particular ideological direction. The evidence does not suggest, however, that judges exploit nonpublication to hide ideologically driven decisions from scutiny or reversal.
The federal courts of appeals designate only a shrinking minority of their decisions for publication.1 As a practical matter, however, the distinction between a published opinion and an unpublished opinion has little to do with whether a case appears in print. The true significance of the distinction lies instead in the fact that "unpublished" opinions are entitled to little or no respect as precedent. Indeed, to date, a majority of circuits have discouraged or forbidden litigants from even citing unpublished opinions.2 Although the Judicial Conference has recently moved to abolish such "no-citation rules,"3 it is deliberately leaving intact the practice of limited publication: each circuit will remain free both to decide which of its decisions to publish, and to deny its unpublished decisions any precedential value.
Though routine, nonpublication has proven controversial. Part of the controversy has concerned the constitutionality of rendering decisions that lack precedential effect, a question given prominence by a pair of sparring opinions from the Eighth and Ninth Circuits.4 What has also aroused concern, however, is the extent to which limited publication rules are susceptible to exploitation and manipulation by strategically minded judges. Prominent jurists have observed that, as a practical matter, the rules that purport to govern publication tend to provide little or no guidance, and that judges often cannot tell whether a decision merits publication.5 The relevant rule may indicate merely that judges should publish decisions that "add to the body of law"6 or have "general public interest."7 The inherent malleability of such criteria is only compounded by the fact that "the judges themselves are the only monitors of how faithfully those criteria are applied."8 The broad and unchecked discretion that judges enjoy in deciding whether to publish, concludes Judge Patricia Wald of the D.C. Circuit, is an invitation to "deviousness and abuse:"
I have seen judges purposely compromise on an unpublished decision incorporating an agreed-upon result in order to avoid a time-consuming public debate about what law controls. I have even seen wily would-be dissenters go along with a result they do not like so long as it is not elevated to a precedent.9
The late Judge Richard Arnold of the Eighth Circuit-an outspoken critic of limited publication practices-voiced similar suspicions:
[I]f, after hearing argument, a judge in conference thinks that a certain decision should be reached, but also believes that the decision is hard to justify under the law, he or she can achieve the result, assuming agreement by the other members of the panel, by deciding the case in an unpublished opinion and sweeping the difficulties under the rug. Again, I'm not saying that this has ever occurred in any particular case, but a system that encourages this sort of behavior, or is at least open to it, has to be subject to question in any world in which judges are human beings.10
There are at least two distinct ways in which strategically minded judges might exploit limited publication rules for their own ends. The first is that judges may seek to shield questionable decisions from scrutiny by refusing to publish them. Because they lack precedential effect, unpublished decisions are unlikely to arouse the attention of busy colleagues or attract en bane review.11 Thus, by leaving a case unpublished a panel of ideologically like-minded judges may engage in result-oriented adjudication with little fear of criticism or reversal. This might be called the scrutiny-avoidance hypothesis.
The second possibility is that judges may attempt to steer the evolution of precedent by favoring publication of cases that lean in a particular ideological direction. …