Signaling and Counter-Signaling in the Judicial Hierarchy

This post was originally published September 15, 2015 in the American Journal of Political Science blogsite. 

In any hierarchical organization, the people at the top face a dilemma: they must delegate many tasks to their subordinates, but they can’t observe all of their subordinates’ actions.  How can superiors effectively monitor subordinates?  This issue arises frequently in many political institutions—including the federal judicial hierarchy. Higher court judges, such as the justices of the Supreme Court, are tasked with overseeing the work of lower court judges. Higher courts, however, usually have discretionary dockets, meaning they can pick the cases they want to hear.  While this discretion has its advantages, it creates a problem: how should higher court judges choose the most worthy cases for review?

In our paper, we focus on the role of judicial dissents in helping higher courts overcome their informational disadvantages relative to lower courts. We examine the hierarchical relationship that exists within the U.S. Courts of Appeals (or circuit courts), the level of appellate federal courts below the U.S. Supreme Court. Cases in these courts are heard by panels of three judges, who are randomly chosen among the judges of a given circuit. A judge who disagrees with the decision of her colleagues may publicly signal her disagreement by writing a dissenting opinion. Following a panel’s decision, a majority of active judges on a circuit can vote to rehear the case in a procedure known as en banc review. These reviews are rare, occurring in only about 1% of cases. This rarity means that the judges of the Courts of Appeals will only want to invest their time in cases where they think review is really worth it.

In our previous paper “Whistleblowing and Compliance in the Judicial Hierarchy,” published last year in the AJPS, we developed a formal theory in which judges use dissents to try to signal non-compliance to the full circuit; that is, they act as judicial “whistleblowers.”  In this paper we test a key prediction of the whistleblower theory–that certain types of judges will be more effective whistleblowers because their ideological preferences make them more credible messengers of non-compliance. The idea is simple. If a judge who everyone expects to agree with the majority based on his ideology nevertheless dissents, that dissent is a much stronger signal that something inappropriate occurred than if a known ideological opponent dissents. Such dissents, which we call counter-preference signals, should therefore be much more effective at triggering review by the full circuit.  In our paper we find that counter-preference signals are indeed an important predictor of en banc review, a finding that sheds light on the relationship between lower courts, judicial opinions, and the higher courts that oversee them. Specifically, moving from a whistleblowing dissent written by an ideological opponent of the panel to one that is an ideological ally raises the probability of en banc review from 3% to 17%, a striking result given the overall rarity of en banc review. Intuitively, an implication of our finding is that a dissent by a moderately liberal judge from a liberal ruling has a much bigger impact on a conservative circuit’s decision to review than a dissent by a like-minded conservative.

Our whistleblower theory also predicts that whistleblowing dissents should be most effective at triggering review when the panel and full circuit are ideologically distant. When the potential for noncompliance is greater, dissent is more likely to indicate severe non-compliance. We find strong support for this prediction: the marginal effect of a whistleblowing dissent is about 46 percentage points when panels and full circuits are distant, compared to about three percentage points when they are close. Both this and the effect of counter preference signals are quite striking, given the overall rarity of en banc review. Taken together, these results have important implications for assessing the role of whistleblowers in the judicial hierarchy, and suggest ways forward for understanding whistleblowing more broadly in other institutional contexts.

Deborah Beim is a Resident Faculty at ISPS and Assistant Professor in the Department of Political Science at Yale University. Alexander V. Hirsch is an Associate Professor of Political Science at the California Institute of Technology. Jonathan P. Kastellec is an Assistant Professor in the Department of Politics at Princeton University. Their article, “Signaling and Counter-Signaling in the Judicial Hierarchy,”, is forthcoming in the American Journal of Political Science