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Unformatted text preview: Hierarchical and Collegial Politics on the U.S. Courts of Appeals Jonathan P. Kastellec * Department of Politics Princeton University [email protected] July 10, 2009 Abstract This paper argues that hierarchical politics in the federal judiciary shape collegial politics within three-judge panels of the U.S. Courts of Appeals to influence judicial voting and case outcomes. I develop a principal-agent model in which the political control of the dual layer of hierarchy above three-judge panels—full circuits and the Supreme Court—affects the ability of a single Democratic or Republican judge on a three-judge panel to influence two colleagues from the opposing party. The theory predicts that panel majorities should be more strongly influenced by a single judge of the opposing party—a “counter-judge”—when that judge is aligned with the Supreme Court. Examining thousands of judicial votes in multiple issue areas in recent years, a period in which the Supreme Court has been conservative, I show that the effect of adding a counter-judge to a panel is consistently larger among Democratic judges than Republican judges. These results have important implications for the Supreme Court’s control of the judicial hierarchy and the rule of law. * I thank Jeffrey Lax, Charles Cameron, Tom Clark, Shigeo Hirano and Rebecca Weitz-Shapiro for helpful comments and suggestions, and Cass Sunstein, David Schkade, Lisa Ellman and Andres Sawicki, and Michael Bailey, for generously sharing their data. 1 Introduction A multi-tiered judicial hierarchy creates different opportunities and different incentives for judges at each level of the hierarchy. In the U.S. federal judicial system, district court judges are subordinate to the Courts of Appeals and to the Supreme Court, but do not have to follow the precedents of their fellow trial court judges (Kornhauser 1995). One level up, three-judge panels of the Courts of Appeals have the ability to reverse district court decisions with which they disagree, but must consider the possibility that they will be reversed by the full circuit sitting en banc or by the Supreme Court, should either decide to grant a petition fore review. Should a majority of active judges on a circuit decide to rehear a case en banc , they too have to consider the likelihood of Supreme Court review (Clark 2008). Finally, the Supreme Court does not have to worry about a higher court reversing its decisions, but does have to decide which cases to review and how best to achieve compliance by lower courts (Cameron, Segal and Songer 2000, Lax 2003, Kastellec 2007). Thus, hierarchical politics play a large role in judicial institutions and in judicial decision making....
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This note was uploaded on 10/22/2009 for the course POL 320 at Princeton.