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Should an
Appellate Judge Join in a Decision Howard J. Bashman I've recently begun reading 7th Circuit Judge Richard A. Posner's newest book, "How Judges Think." It's too soon to tell how many installments of my "On Appeal" column the book will spawn, but the topic of this week's column arises from the book's introduction, in which Posner writes that "A judge might join the majority opinion in a case not because he agreed with it but because he thought that dissenting publicly would magnify the effect of the majority opinion by drawing attention to it." It had not previously occurred to me that a judge on an intermediate federal appellate court might join in an opinion to minimize the opinion's impact. At the same time, I acknowledge the premise of Posner's observation that an appellate court's ruling, if accompanied by a dissent, may initially receive closer scrutiny than if it had been issued by a unanimous panel. Yet, both initially and over time, a unanimous ruling will be perceived as being on a stronger jurisprudential footing than a decision from a divided court. The existence of a dissent increases the chance that a panel rehearing or a rehearing en banc will be granted. And the existence of a dissent also increases the possibility of U.S. Supreme Court review. Even once the time for initial reconsideration or reversal has expired, most appellate advocates would agree that it is preferable to cite to a unanimous appellate court ruling as authority for a proposition of law instead of citing to the decision of a divided three-judge panel. Theoretically, the decision of the majority on a divided three-judge panel has the same precedential force as the ruling of a unanimous three-judge panel. But, in actuality, some advocates and judges may see the decision of a unanimous three-judge panel as having greater precedential force due to that very unanimity. I seriously doubt that any federal appellate judge -- let alone someone as experienced as Posner -- needs my advice on how to ensure that a particular ruling will elude close attention from the masses. Nevertheless, in my view, the most straightforward way for an appellate court's decision to avoid attention is by being issued as a non-precedential ruling. Regular readers of this column know that I am not a fan of non-precedential rulings. Indeed, I believe that they should be abolished altogether, and that the precedential value of any given federal appellate court ruling can only be determined by a later panel's deciding whether the earlier decision should be applied as precedent. But, whether or not non-precedential rulings should exist as a matter of sound policy, they are, in fact, regularly issued by nearly all intermediate federal appellate courts. It is possible that a federal appellate judge could attempt to bargain away his or her threatened dissent in exchange for having the majority issue its ruling as a non-precedential opinion. In that way, the majority could reach its desired result in a given case, but that result by definition would not bind the issuing court in the next case to raising the identical question. Alternatively, a judge with the power to assign who will draft an opinion could give himself that duty in a case where he actually disagrees with the result preferred by his colleagues, and the assigning judge could then draft the opinion to issue as non-precedential. In such a scenario, the chances are slim that the other two judges on the panel will require the authoring judge to undertake the additional work necessary to transform the opinion into a published opinion. It is a mind-bending proposition to think that Posner may have joined in unanimous 7th Circuit rulings to prevent rulings with which he disagreed from getting the attention they would have received had he dissented. I, for one, prefer to view unanimous 7th Circuit decisions as being on a more sound jurisprudential footing than 7th Circuit rulings that issued from a divided three-judge panel. Perhaps before I finish his book, Posner will go on to explain that he has issued dissents from decisions that he actually agreed with in order to ensure that those decisions received attention that they otherwise would not have attracted had he merely joined in the majority opinion. If that's "How Judges Think," Posner has indeed written a must-read book. Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached via e-mail at hjb@hjbashman.com. You can access his appellate Web log at http://howappealing.law.com/.
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A Feast
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