NYU Study Uncovers Rising Partisanship in Federal Circuit Courts of Appeals

Considering more than 400,000 cases of judicial review within U.S. federal appellate courts, a new paper finds inescapable traces of influence stemming from “politicization and polarization,” particularly in the last two decades.

The trend was most pronounced in precedential cases, with appellate panels of Democratic judges more likely to reverse Republican trial judges compared to Democratic ones, whereas Republican panels were less likely to reverse fellow Republican judges.

Arising from judges’ partisan alignment or misalignment with trial judges, the effect was detected in both ideological and non-ideological cases. It was even detected among judges appointed prior to 2000, before the increased politicization of judicial appointments became more pronounced. While more partisan judges are being nominated and confirmed for the bench, judges are becoming more polarized at the same time.

The paper, titled “Judges Judging Judges: Partisanship and Politics in the Federal Circuit Court of Appeals,” was jointly authored by Rajeev H. Dehejia of New York University and Alma Cohen of Harvard Law School, and just published by the nonpartisan National Bureau of Economic Research (NBER).

“Panels of Democratic judges are 6.9 percentage points more likely to reverse Republican trial judges compared to Democratic ones, whereas Republican panels are 3.6 points less likely to reverse fellow Republican judges,” according to the findings.

In the investigation of the Circuit Courts of Appeals, the paper examines a surprisingly little-studied question of whether reversal decisions are influenced by political differences among appellate panel judges, and their political alignment (or misalignment) with the trial judge who originally decided that case. Federal judges’ decisions do, in fact, show evidence of political polarization, the paper shows.

The U.S. federal court system is the “fundamental pillar in the United States’ system for enforcing and interpreting federal laws,” whether federal crimes, breach of contract and discrimination, regulatory matters, or other areas of jurisprudence.  In the offing is the possibility that the federal courts may have a role in determining the outcome of a close presidential election, a scenario that could cast questions of judicial panels’ political affiliations and ideological leanings into sharp relief.

The authors used data compiled from three sources: the Administrative Office of U.S. Courts Database; Lexis Nexis for information on the identifies of the judges and panels in the Federal District courts, Federal Circuit Courts of Appeals, and the random assignment of Circuit Court judges to panels; and the Federal Judicial Center biographical Director of Federal Judges.

The paper uses “politicization” and “polarization” in a descriptive sense only, without seeking to imply incorrect decisions on the part of judges or judicial panels. But, the findings signify that “political trends in judicial appointments have a significant impact on the behavior of the courts.”