D.C. Circuit Judge Harry Edwards. Credit: Diego M. Radzinschi/ NLJ

Collegiality may be be in short supply on Capitol Hill right now, but within the geographically and ideologically diverse federal courts of appeals, the trait is more the rule than the exception, according to Senior Judge Harry Edwards of the U.S. Court of Appeals for the D.C. Circuit.

Edwards, preparing for a conference earlier this year at Oxford University, researched how federal appellate courts seek and achieve collegiality. He collected and analyzed data on case workload, opinions and the results of a survey he sent to the chief judges of the federal appeals courts. His review was published online this month.

Edwards said he's long been interested in collegiality. When he joined the D.C. Circuit in 1980, he recalled in an interview this week, his court was “so fractured” and he knew “there had to be a better way.” To that end, the court initiated rules and strategies to encourage collegial decision making.

“It isn't all about whether we're all best buddies,” he said. “That's not the point. It's whether we have a common mission to get the law right. It's the professional enterprise. They work hard at it.”

Edwards said he suspected—and found heartening—that the appellate courts, as diverse as they are, share many common approaches to ensuring collegiality. “I think it is working for a lot of circuits,” he said. “There are a lot of judges who have it in their minds even as they're angry with colleagues.” The politically charged cases—the ones that take “all the energy a court has to give”—are not as numerous as many might think, Edwards said. The rest of the case are just “hard work,” he added.

In his article, Edwards noted that some observers of the courts are confused when judges sharply disagree over the proper resolution of some cases. “This causes some commentators to claim that our decision making is unduly influenced by the personal political and ideological leanings of the individual judges,” he wrote. The available data refute these claims, Edwards wrote.

Data for five terms from 2011 through 2016 showed that most federal appeals courts decisions on the merits—published and unpublished—were unanimous. Slightly more than 1 percent of 172,680 decisions included a dissent, he found.

“Any judge understands what this means: we routinely deliberate carefully over the cases before us and aim to get the law right. And in an astonishingly high number of our decisions—98.7 percent—we reach unanimous judgments,” Edwards wrote.

Even if only “published” decisions are counted during those five terms, 10.6 percent of the 2,220 total included a dissent, according to the data.

“In the end, collegiality mitigates judges' personal predilections and enables us to find common ground and reach better decisions,” Edwards wrote. “If politics and ideology significantly affected our decision making, the courts would issue more dissenting and concurring opinions. The fact that a vast majority of our decisions are unanimous speaks volumes about the positive effects of collegiality on collegial decision making in the various courts of appeals.”

Edwards cautions that the work of the appellate courts cannot be measured by any reference to the U.S. Supreme Court. Their collegial operations and decision-making processes are “strikingly different.”

But he does note that the data on the high court's unanimity presents a very different picture. For example, during the 2011-2016 terms, 56 percent of signed decisions on the merits included a dissenting opinion at least in part; 41 percent included a concurring opinion, and 46 percent reflected unanimous judgments.

The D.C. Circuit and other appeals courts have adopted internal operating rules to encourage collegial decisionmaking, Edwards said. The D.C. Circuit requires every judge to sit with every other active judge at least four times per term. Most circuits allow the junior judge to speak first in conferences.

What follows are a few highlights from Edwards's article.

|

Defining “Collegiality”

“In my view, it is a process that helps to create the conditions for principled agreement, by allowing all points of view to be aired and considered. It allows judges of differing perspectives and philosophies to communicate with, listen to, and ultimately influence one another in constructive and law-abiding ways. And collegiality mitigates judges' ideological preferences and enables us to find common ground and reach better decisions. Collegiality thus facilitates collegial decision making.”

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“Irascible Personalities” and Threats to Collegiality

“[T]he size of the court may make it more difficult to maintain collegiality. It stands to reason that the larger the court, the less frequently any two judges sit together and interact with each other. Another threat is the location of the judges' chambers. When judges are spread apart, they may interact less because they sit in distant locations. I have always believed that the number of judges on a circuit is a more important variable than the location of the judges' chambers. The nature and number of a circuit's cases can certainly affect collegial decision making. For example, circuits that have large numbers of pro se and immigration cases face difficult case management problems.

The addition of new judges to a court can also affect collegiality. The problem is particularly challenging when new judges join a court that includes a large number of judges who have worked together for many years. Finally, individual personalities can pose threats to collegiality on a court.

The second consideration has to do with 'irascible personalities' who sometimes distract from a court's mission. Fortunately, it is my impression that most court of appeals judges are sufficiently strong, independent, and smart, and thus able to withstand any potential threats to collegiality that might be the byproduct of individual personalities. It is also my impression that most judges try hard not to offend the norms of collegiality.”

|

Countering Judge Richard Posner

“Judge Richard Posner has written that judges 'don't deliberate very much' and that '[j]udicial deliberation is overrated.' My experience does not support this view. I have found that, on a collegial court, judicial deliberations are pervasive and fruitful. Judges deliberate when they raise questions during oral argument to alert their colleagues to their concerns. Judges deliberate in conference and continue to deliberate after conference when they raise issues uncovered in their research. Judges deliberate when they circulate draft opinions, receive their colleagues' responses, and negotiate resolutions to any differences. And during all of these occasions, judges on a court blessed with collegiality keep an open mind about the correct result pending the conclusion of deliberations.”

|

On Lessons Learned

“In reflecting on these matters over the years, I have come to understand that there are a number of factors that may affect appellate decision making, some that should and some that should not. These factors include: the requirements of positive law; precedent; leadership; internal court rules; whether the judges are equally committed to prepare cases carefully and deliberate seriously; how cases are framed and argued by the litigants; judicial appointments; the relative intelligence of the court's judges; the judges' personalities and ideological leanings; diversity on the bench; and whether a court has a core group of well-seasoned judges who have worked together for a good period of time. These are elusive considerations that cannot be easily determined and weighed. They matter, however. Precedent may be the linchpin.”

|

“Judges Have Frailties”

“I do not mean to sound Pollyannaish, however. Our judicial system is not perfect and judges have frailties that sometimes adversely affect decision making. My colleagues and I are constantly tested. We know, for example, that when the executive branch changes following a presidential election, the courts invariably will face important and contentious issues. These challenges are not insurmountable, however. As long as we stay within the constraints implicit in our mission, we will retain the capacity to serve justice as we should. And our efforts always will be enhanced if we can maintain collegiality in our collegial decision making.”

Read more:

D.C. Circuit Judge Harry Edwards. Credit: Diego M. Radzinschi/ NLJ

Collegiality may be be in short supply on Capitol Hill right now, but within the geographically and ideologically diverse federal courts of appeals, the trait is more the rule than the exception, according to Senior Judge Harry Edwards of the U.S. Court of Appeals for the D.C. Circuit.

Edwards, preparing for a conference earlier this year at Oxford University, researched how federal appellate courts seek and achieve collegiality. He collected and analyzed data on case workload, opinions and the results of a survey he sent to the chief judges of the federal appeals courts. His review was published online this month.

Edwards said he's long been interested in collegiality. When he joined the D.C. Circuit in 1980, he recalled in an interview this week, his court was “so fractured” and he knew “there had to be a better way.” To that end, the court initiated rules and strategies to encourage collegial decision making.

“It isn't all about whether we're all best buddies,” he said. “That's not the point. It's whether we have a common mission to get the law right. It's the professional enterprise. They work hard at it.”

Edwards said he suspected—and found heartening—that the appellate courts, as diverse as they are, share many common approaches to ensuring collegiality. “I think it is working for a lot of circuits,” he said. “There are a lot of judges who have it in their minds even as they're angry with colleagues.” The politically charged cases—the ones that take “all the energy a court has to give”—are not as numerous as many might think, Edwards said. The rest of the case are just “hard work,” he added.

In his article, Edwards noted that some observers of the courts are confused when judges sharply disagree over the proper resolution of some cases. “This causes some commentators to claim that our decision making is unduly influenced by the personal political and ideological leanings of the individual judges,” he wrote. The available data refute these claims, Edwards wrote.

Data for five terms from 2011 through 2016 showed that most federal appeals courts decisions on the merits—published and unpublished—were unanimous. Slightly more than 1 percent of 172,680 decisions included a dissent, he found.

“Any judge understands what this means: we routinely deliberate carefully over the cases before us and aim to get the law right. And in an astonishingly high number of our decisions—98.7 percent—we reach unanimous judgments,” Edwards wrote.

Even if only “published” decisions are counted during those five terms, 10.6 percent of the 2,220 total included a dissent, according to the data.

“In the end, collegiality mitigates judges' personal predilections and enables us to find common ground and reach better decisions,” Edwards wrote. “If politics and ideology significantly affected our decision making, the courts would issue more dissenting and concurring opinions. The fact that a vast majority of our decisions are unanimous speaks volumes about the positive effects of collegiality on collegial decision making in the various courts of appeals.”

Edwards cautions that the work of the appellate courts cannot be measured by any reference to the U.S. Supreme Court. Their collegial operations and decision-making processes are “strikingly different.”

But he does note that the data on the high court's unanimity presents a very different picture. For example, during the 2011-2016 terms, 56 percent of signed decisions on the merits included a dissenting opinion at least in part; 41 percent included a concurring opinion, and 46 percent reflected unanimous judgments.

The D.C. Circuit and other appeals courts have adopted internal operating rules to encourage collegial decisionmaking, Edwards said. The D.C. Circuit requires every judge to sit with every other active judge at least four times per term. Most circuits allow the junior judge to speak first in conferences.

What follows are a few highlights from Edwards's article.

|

Defining “Collegiality”

“In my view, it is a process that helps to create the conditions for principled agreement, by allowing all points of view to be aired and considered. It allows judges of differing perspectives and philosophies to communicate with, listen to, and ultimately influence one another in constructive and law-abiding ways. And collegiality mitigates judges' ideological preferences and enables us to find common ground and reach better decisions. Collegiality thus facilitates collegial decision making.”

|

“Irascible Personalities” and Threats to Collegiality

“[T]he size of the court may make it more difficult to maintain collegiality. It stands to reason that the larger the court, the less frequently any two judges sit together and interact with each other. Another threat is the location of the judges' chambers. When judges are spread apart, they may interact less because they sit in distant locations. I have always believed that the number of judges on a circuit is a more important variable than the location of the judges' chambers. The nature and number of a circuit's cases can certainly affect collegial decision making. For example, circuits that have large numbers of pro se and immigration cases face difficult case management problems.

The addition of new judges to a court can also affect collegiality. The problem is particularly challenging when new judges join a court that includes a large number of judges who have worked together for many years. Finally, individual personalities can pose threats to collegiality on a court.

The second consideration has to do with 'irascible personalities' who sometimes distract from a court's mission. Fortunately, it is my impression that most court of appeals judges are sufficiently strong, independent, and smart, and thus able to withstand any potential threats to collegiality that might be the byproduct of individual personalities. It is also my impression that most judges try hard not to offend the norms of collegiality.”

|

Countering Judge Richard Posner

“Judge Richard Posner has written that judges 'don't deliberate very much' and that '[j]udicial deliberation is overrated.' My experience does not support this view. I have found that, on a collegial court, judicial deliberations are pervasive and fruitful. Judges deliberate when they raise questions during oral argument to alert their colleagues to their concerns. Judges deliberate in conference and continue to deliberate after conference when they raise issues uncovered in their research. Judges deliberate when they circulate draft opinions, receive their colleagues' responses, and negotiate resolutions to any differences. And during all of these occasions, judges on a court blessed with collegiality keep an open mind about the correct result pending the conclusion of deliberations.”

|

On Lessons Learned

“In reflecting on these matters over the years, I have come to understand that there are a number of factors that may affect appellate decision making, some that should and some that should not. These factors include: the requirements of positive law; precedent; leadership; internal court rules; whether the judges are equally committed to prepare cases carefully and deliberate seriously; how cases are framed and argued by the litigants; judicial appointments; the relative intelligence of the court's judges; the judges' personalities and ideological leanings; diversity on the bench; and whether a court has a core group of well-seasoned judges who have worked together for a good period of time. These are elusive considerations that cannot be easily determined and weighed. They matter, however. Precedent may be the linchpin.”

|

“Judges Have Frailties”

“I do not mean to sound Pollyannaish, however. Our judicial system is not perfect and judges have frailties that sometimes adversely affect decision making. My colleagues and I are constantly tested. We know, for example, that when the executive branch changes following a presidential election, the courts invariably will face important and contentious issues. These challenges are not insurmountable, however. As long as we stay within the constraints implicit in our mission, we will retain the capacity to serve justice as we should. And our efforts always will be enhanced if we can maintain collegiality in our collegial decision making.”

Read more: