This time, we’re concluding our four-part post, both here and on the Illinois Supreme Court Review, discussing some of the academic literature on panel effects in appellate decision-making.
Today, we’re looking at “Judging the Voting Rights Act,” 108 Columbia Law Rev. 1 (2008), by Professors Adam B. Cox and Thomas J. Miles. The authors began by collecting every published Federal decision decided pursuant to Section 2 of the Voting Rights Act since 1982.
The study concludes that appointees of Democratic Presidents voted to find liability in 36.2% of cases, while Republican appointees found liability in only 21.2% of cases. For cases decided between 1982 and 1994, Democratic appointees found liability at a rate seventeen percentage points higher than Republican appointees. For cases decided between 1995 and 2008, the margin between Democratic and Republican appointees decreased to only a nine-point margin for the Democrats. In cases involving at-large elections, Democratic appointees voted to impose liability 44% of the time, while Republican appointees voted to impose liability only 22% of the time.
The authors then demonstrated that once again, panel selection mattered for the case result. When panels consisted of three Democratic appointees, the likelihood of an individual judge voting to find liability was 40.7%. When the panel consisted of two Democrats and one Republican appointee, that percentage fell to 32.8% of cases. When the panel consisted of one Democrat and two Republican appointees, the likelihood that a given judge would vote for liability was 27.8%.
When the panel consisted of two Democratic appointees and one Republican, the likelihood of a judge voting to find liability was 23.9%. When the panel was two Republicans and one Democrat, the likelihood of a judge voting to find liability was 21.3%. When the panel was entirely Republicans, the likelihood dropped to only 11.1%.
The authors also studied the data for voting patterns based on the race of the appellate judge. Voting patterns for African-American judges were close to identical across the board. All African-American judges voted to impose Section 2 liability 55.8% of the time. Democratic African-American appointees voted to find liability 55.9% of the time. Republican African-American appointees voted to find liability in 55.6% of cases. All other judges (not African-American) voted to find Section 2 liability 26.1% of the time. Democratic appointees in that subgroup voted for liability in 33.7% of cases. Republicans found liability in 20.4% of cases.
Join us back here next week as we turn our attention to a new inquiry.