COURTING MULTIPLE AUDIENCES: THE STRATEGIC SELECTION OF LEGAL GROUNDINGS BY JUDGES ON THE U.S. COURTS OF APPEALS*

Justice System Journal, 2009 by Hume, Robert J

This study considers whether judges on the U.S. Courts of Appeals select legal groundings based on the expected responses of multiple audiences. It is hypothesized that judges use reasoning-process review when their policies depart from the preferences of higher-court judges and other actors who have the power to overturn their decisions, but use substantive groundings when they wish to broadcast their policies to judges in different circuits. The study uses the Judicial Common Space scores to compare panel ideologies with the preferences of Supreme Court justices, judges in other circuits, judges from the same circuit, and Congress. The results indicate that the choice of legal grounding does vary depending on a panel's level of agreement with different actors, providing further empirical support for the strategic model of judicial behavior.

Do judges on the U.S. Courts of Appeals tailor the language of their opinions to the demands of multiple audiences? One might assume that panels are primarily concerned about the Supreme Court because the justices have the power to reverse their decisions, but strategic judges should also pay attention to other actors who can affect the impact of their policies, such as judges from the same circuit, judges from outside circuits, and members of Congress. Strategic panels will adapt opinion language to the audience that is most relevant to attaining their policy goals in a given circumstance.

This study considers whether legal groundings vary with the audience, focusing especially on the use of reasoning-process review by judges on the U.S. Courts of Appeals. For the purposes of this analysis, the legal grounding is defined as the primary basis of a court's opinion. In a given area of law, panels might apply a variety of different rationales to justify case outcomes. For example, panels in administrative cases might evaluate the procedures agencies have followed or they might conduct more substantive analyses, declaring that agencies have misinterpreted statutes or provisions of the federal Constitution. Because litigants generally raise a variety of procedural and substantive claims challenging administrative proceedings, panels can often select the legal rationales they prefer.

Reasoning-process review is a type of legal grounding that judges use to indicate that a federal agency has "failed to present adequate reasons for its decision" (Smith and Tiller, 2002:64). Unlike more substantive forms of review, reasoning-process review evaluates only the procedures agencies use to enact policies. For example, under the "arbitrary and capricious" standard, panels determine whether an agency has established a "rational connection between the facts found and the choice made." Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983). Judges who employ reasoning-process review do not consider whether an agency has substantively misinterpreted its governing statute or the federal constitution, but instead focus on whether an agency has acted on the basis of reasoned decision making.

It is hypothesized that judges use reasoning-process review instrumentally, as a way of attracting or deflecting the attention of other actors who can determine what the impact of their policies will be. For example, Smith and Tiller (2002) demonstrated that judges on the U.S. Courts of Appeals are more likely to use reasoning-process review when they want to avoid reversal by the Supreme Court. The more strongly a panel disagrees with a policy, the more committed the judges on the panel are likely to be to the result, and the more likely they are to use process instruments to deflect the attention of the justices. Although the Court does take reasoning-process cases from time to time, procedural cases are less likely to present the types of important federal questions that the justices commonly review (see also Tiller and Spiller, 1999). Strategic judges can decrease the likelihood of review by selecting process instruments to defend favored policies.

This study builds on Smith and Tiller's work by demonstrating that the use of reasoning-process review varies with the preferences of other actors besides the justices. It is hypothesized that judges on the U.S. Courts of Appeals use reasoningprocess review to deflect the attention of actors who have the power to limit the impact of their policies, such as members of Congress and judges from the same circuit. However, judges avoid using reasoning-process review when they want to attract the attention of other actors, such as judges in other circuits. The Judicial Common Space scores (Epstein et al., 2007) permit a direct comparison of lower-court preferences with the preferences of Supreme Court justices, judges from outside circuits, judges from the same circuit, and other political actors. One can, therefore, assess whether the strategic incentives of judges change depending on which audience is most likely to disagree with them.