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Politics, Identity, and Class Certification on the U.S. Courts of Appeals

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Stephen B. Burbank and Sean Farhang utilize new data and discuss the first empirical investigation into how key characteristics of U.S. Court of Appeals judges—such as political affiliation, gender, and race—affect decisions related to class certification under Rule 23 of the Federal Rules of Civil Procedure.

Image courtesy of interviewee. October 1, 2024

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This video discusses the political conflicts surrounding federal judicial nominations in the U.S. and examines how the identities of judges—specifically their political alignment, race, and gender—impact their decision-making and case outcomes. It highlights a trend where presidents prioritize judicial nominees aligned with their ideological preferences, which fosters opposition from political adversaries who label those nominees as extremists.

The authors distinguishes between descriptive representation (reflecting the demographic diversity of the population) and substantive representation (the idea that diverse judges bring different perspectives that can affect legal outcomes). Increasing diversity on the bench is understood to enhance the judiciary’s legitimacy and promote equity in legal decision-making, particularly concerning discrimination and inequality.

Key empirical questions explored include whether the identity of judges influences how they decide cases. Literature suggests that the composition of judicial panels can impact voting behavior, with studies showing that the identity of other judges on the panel often has a stronger effect on a judge's vote than their own identity. For example, the presence of a woman or a minority judge can change the likelihood of a pro-plaintiff outcome in civil rights cases.

The discussion also touches upon the lack of attention given to the role of identity in procedural law, such as class actions, despite the significant implications these rulings have in expanding access to justice. The authors advocate for further examination of how race and gender influence judicial outcomes, particularly in non-discrimination contexts.

Findings include that while the presence of one African American judge on a panel increases the likelihood of class certification, one woman does not have a similar effect unless there are two women present, suggesting that gender dynamics may be more complex and potentially inequitable in procedural contexts. This video calls for a nuanced understanding of how diversity influences judicial decision-making and encourages further research into these critical areas.

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Here are five key points extracted from the video regarding political conflict over federal judicial nominees and the dynamics of judicial decision-making:

1. **Political Conflict and Judicial Nominees**: The political landscape in the U.S. has seen increasing conflict over federal judicial nominees, with presidents seeking judges who align ideologically with their political agendas. This has led to political opponents working to defeat these nominees by portraying them as ideological extremists.

2. **Representation and Diversity**: The debate over judicial appointments extends beyond ideology to include considerations of gender and racial diversity. The goal is to have a judiciary that reflects the demographics of the country, which may enhance its legitimacy and appearance of impartiality, and potentially influence substantive decisions by incorporating diverse perspectives.

3. **Judicial Identity and Decision-Making**: Research indicates that the identity characteristics of judges, such as race and gender, may influence their decisions, particularly in cases related to discrimination and inequality. Judges’ personal experiences with discrimination can affect their sensitivity to issues faced by plaintiffs in such cases.

4. **Panel Dynamics in Judicial Votes**: Studies in political science highlight "panel effects," suggesting that the composition of a judicial panel can significantly impact individual judges' voting behavior. Specifically, the identities of the other judges on a panel may have more influence on a judge's decisions than the judge's own identity.

5. **Impact of Gender and Race on Class Certification**: The presence of minority judges (especially African Americans) on judicial panels can enhance the likelihood of pro-certification (favorable) outcomes in class action cases. Conversely, the presence of female judges does not show the same effect unless women are in the majority, indicating a potential majoritarian dynamic in judicial decision-making that obscures women's influence even when they serve on panels.

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Here are some key quotes from the video based on the content :

1. **Political Conflict Over Judicial Nominees**:
- "Political conflict over federal judicial nominees has long been, uh, a familiar feature of the American political landscape."

2. **Judicial Ideology and Representation**:
- "One goal of increasing diversity on the bench is to create a bench that descriptively reflects the country's diversity, which itself can promote the judiciary's appearance of impartiality and enhance its democratic legitimacy."
- "Another goal concerns legal substance. Some people believe that women and racial minority judges have different preferences that are potentially consequential to case outcomes."

3. **Empirical Questions About Judicial Decisions**:
- "The core empirical question is do the identity characteristics of judges actually matter to the way that they decide cases?"

4. **Panel Effects and Decision Making**:
- "The identity of the other members of the panel actually have more explanatory power than the judge's own identity."
- "It turns out that we can predict your vote better by knowing whether you're sitting with two Republicans or knowing whether you're sitting with two Democrats."

5. **Impact of Diversity on Outcomes**:
- "The presence of just one woman or one non-white judge... could increase the probability of a pro plaintiff outcome in civil rights cases."
- "Moreover, we found that one African American judge on a panel increases the probability that the panel will certify."

6. **Gender Dynamics in Judicial Panels**:
- "The presence of one woman on a panel is not associated with higher rates of class certification. However, when women become a majority, those panels are significantly more likely to certify classes than panels with all men."

7. **Majoritarian Dynamics on Panels**:
- "The majoritarian structure of the gender panel effects results counsel's caution in the interpretation of prior work."

8. **Class Action Certification's Impact**:
- "Class certification has the capacity of transforming a wage or consumer grievance over modest economic stakes into a claim for massive damages when litigated on behalf of a class."

9. **Scholarly Neglect of Ideological Influence**:
- "The neglect of gender and race as possible influences on class certification decisions may reflect that the apparent consensus that has emerged... that judges' gender and race are associated with variation in preferences only in a narrow band of cases that directly and explicitly implicate discrimination and inequality."

These quotes capture the core themes of diversity in judicial appointments, the empirical impact of race and gender on judicial decision-making, and the complexities of panel dynamics in the courtroom, particularly in relation to class action lawsuits.

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Well, political conflict over federal judicial nominees

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has long been, a familiar feature

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of the American political landscape.

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Uh, presidents have increasingly come to regard,

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federal judges with aligned preferences as critical

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to elaborating, and implementing their agendas.

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Political opponents of presidential administrations are,

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of course, attentive to the same concerns,

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and it seems that the harder president's work,

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to nominate ide ideologically aligned, candidates.

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The harder opponents work to defeat them,

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often characterizing them as ideological extremists.

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Now the focus of this battle extends

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beyond conventional markers of ideology

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and encompasses gender

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and racial diversity, which are often tied

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to issues of representation.

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And here, Hannah Pitkin classic distinction

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between descriptive

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and substantive representation is useful.

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One goal of increasing diversity on the bench is

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to create a bench that descriptively reflects the country's

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diversity, which itself can promote the judiciary's

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appearance of impartiality

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and enhance its democratic legitimacy.

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Another goal concerns legal substance.

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Some people believe that women

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and racial minority judges have different preferences

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that are potentially consequential to case outcomes,

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and in particular that they are more sensitive than white

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males to issues of discrimination

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and inequality in their substantive decision making.

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The primary reason given for this view is that women

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and racial minority judges are more likely to have seen

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or been subjected to discrimination.

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And these distinctive life experiences make the judges more

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likely to believe a plaintiff's evidence of discrimination

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and to empathize with such plaintiffs.

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The debates about substantive representation that,

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Steve was talking about, kind

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of turn on on a core empirical question.

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Um, and the core empirical question is do do the identity

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characteristics of judges actually matter to the way

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that they decide cases?

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Um, and there there's a very large political,

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science literature focused on law

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and the iden, the judge identity characteristics

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that political scientists have principally been interested

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in our political party using the party

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of the appointing president and the federal system,

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and also studying, the race and gender of the judge

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and its relationship to, outcomes.

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That literature, in contrast with our paper, has tended

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to focus on areas of, big salient,

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substantive law questions like voting.

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They focus on types of cases like voting rights cases,

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desegregation cases,

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employment discrimination cases, et cetera.

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And in that literature, a really important, result

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that we draw upon

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and mobilize in the paper concerns panel effects.

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And the idea of panel effects in that literature is

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that it has demonstrated that the identity, when you try

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to study the votes of judges on panels, the identity

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of the other members of the panel

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actually have more explanatory power than

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the judge's own identity.

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I'll give an example of what I mean by that in a second.

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The landmark studies focused on party, Richard Reve,

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Frank Cross, and Emerson Tiller were key scholars that kind

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of innovated and discovered these panel effects.

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Um, and they found that the political party

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of the other members

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of the panel were more important in explaining one judge's

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vote than the judge's own political party.

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And to be concrete. 'cause I know that's abstract.

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It's like if you're a Republican judge, it turns out

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that we can predict your vote better

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by knowing whether you're sitting with two Republicans

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or knowing whether you're sitting with two Democrats.

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That tells us more about

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how you're gonna vote than your own party.

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So that those insights were then extended to areas of race

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and gender, and extending it to race and gender.

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Uh, studies found that the presence of just one, woman

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or one non-white judge

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or African American judge, depending on the study, could

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increase the probability

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of a pro plaintiff outcome in civil rights cases.

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And this was, thought

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to be particularly significant

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because of the fact that the,

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the effect was present even when the woman

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or the non-white judge was in the minor numerical minority

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on the panel, there was one of them sitting with two men

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or an African American sitting with two whites,

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and yet they were able to influence the outcome of the case.

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Um, that is decided based on a majority,

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vote of the judges.

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And I would just want to add one thing

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that when we talk about what we mean

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by minority on the panel,

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we're talking about three judge panels,

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which are the focus of our study.

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Um, and that the minority simply means your identity

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characteristic party, race, gender, makes you outnumbered

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by the other two on the panel

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that makes you a panel minority.

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So that's my my thoughts and response to that question.

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Now, scholarly neglect of the possible influence

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of ideology, is not surprising

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regarding procedural law in general,

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because traditionally procedure in the United States was

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called adjective law,

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and it was represented as technical details.

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In short, the sort of law that ought to be left

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to the experts, namely judges, the neglect is more puzzling

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with respect to class actions,

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which have long been the subject

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of ideologically inflected debate aggregation.

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Under Rule 23, the class action rule can be a vehicle for

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enormous regulatory power

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because class certification has the capacity of,

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of transforming a wage

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or consumer grievance over modest economic stakes,

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that would never be litigated individually into a claim

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for massive damages when litigated on behalf of a class

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providing the prospect of a remedy for large groups

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of persons and of shaping the behavior

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of defendants in favor of compliance.

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In prior work on the Supreme Court's decisions,

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interpreting federal rules of civil procedure

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that implicate private enforcement, including Rule 23,

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Sean and I showed that beginning in 1995,

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the justice's votes in such cases were more strongly

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associated with ideology than were their votes on merits

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issues, particularly given increasing attention to ideology

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and lower federal court appointment, appointments.

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In recent decades, our goal in collecting comprehensive data

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on class actions, this class action decisions

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by the courts of appeals included determining whether

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ideology plays a similar role at that level.

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Now, the neglect of gender

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and race as possible influences on class certification

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decisions may reflect that the apparent consensus

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that is emerged in the literature on the courts of appeals

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that Shawn referred to, that judges ra gender

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and race, are associated

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with variation in preferences only in a narrow band of cases

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that directly and explicitly implicate

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discrimination and inequality.

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Our own prior work also gave cause to question

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that assumption as to procedural law, including rule 23

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that affects access to justice

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and does so across substantive domains,

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including in particular, those

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concerning discrimination and inequality.

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There is disagreement in the literature,

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about the nature of the panel dynamics.

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Um, the, the literature that the, the theoretical literature

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that tries to grapple with this question

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of what's really going on on these panels starts, I think,

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with an important empirical

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observation that's been made by money.

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And the empirical observation is these panels are

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overwhelmingly unanimous.

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I think in our class action, I can't remember, literally,

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I believe they might have been 98% unanimous in some areas,

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95% unanimous.

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And that we, we observe a very high level

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of unanimity on court of appeals panels, even in areas

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where we know there's a lot of ideological disagreement

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among judges from case to case to case,

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yet within case they achieve unanimity.

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So there's one set of theories that, to try to explain this,

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they're referred to as kind of dissent avoidance

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or suppressed dissent theories.

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Um, and these are theories

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that say the unanimity actually masks disagreement.

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There are people who would be in the dissent who disagree

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with the majority, but they elect not to write the dissent.

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Um, and there's different theories about why this is so,

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one is that, you know, they're, they're overworked as it is.

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And taking on the extra work of writing in dissent

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that's not gonna affect the outcome is undesirable.

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Other theory suggest that there are norms on the court

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that it's regarded as bad for the court to dissent

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'cause it makes the decisions look less credible

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and inconsistent with the rule of law.

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I mean, therefore, the norms encourage people to,

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to suffer quietly

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and sign on to decisions that they disagree with.

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So this sort of de de depressed dissent,

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suppressed dissent story is a view that,

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the majority's views prevail without being affected

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by the wouldbe dissenter.

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And the dissenter just quietly dissent,

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that the wouldbe dissenter quietly goes along.

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There's a separate set of theories,

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and the separate set of theories focus on the idea

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that there are things that are happening on the panel

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that actually allow the wouldbe dissenter

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to affect the outcome.

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And therefore, it's precisely

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because of the, the, the wouldbe dissenter has influence

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that they shape the outcome and they don't need to dissent.

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And from this perspective,

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the two key ideas are deliberation and bargaining.

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One of them is the dissenter just expresses views

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and makes arguments that the majority might not

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otherwise have heard or been attentive to,

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and they're persuaded.

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And therefore, when the dissent,

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when the would-be dissenter is there, in some fraction

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of cases, they do influence the outcome.

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A related, theory is that the, is the bargaining theory.

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And the bargaining theory is

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that the would be dissenter says, look,

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if you don't make concessions to me in this way

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or that way, I'm going to file a dissent.

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Um, and that dissent is gonna expose inadequacies

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of your opinion that dissent might invite people

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to resist compliance with the opinion,

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and that dissent might corrode the legitimacy of the court

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as compared to a world in which everybody agrees from

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different backgrounds on what the right answer is.

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So that's the key. Um, other theory,

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to deliberation is bargaining.

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Um, I do, I would wanna ma make one more point,

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and that is that as compared

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to the suppressed dissent theories, the bargaining

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or deliberation theories that allow minorities

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to affect majorities have kind

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of positive normative implications.

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And they have positive normative implications in saying,

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even though you're not on the majority, you have,

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you have a capacity to participate in making

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and developing law

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and influencing the development of law, as compared

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to a suppressed dissent story in which,

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you have no effect.

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And just quietly go along.

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In our, paper, we,

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create original data.

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No data had been collected over time of certification

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behavior on the courts of appeals,

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and we created a comprehensive data set of all court

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of appeals decisions,

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ruling on certification under rule 23,

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between 1967 and 2017.

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Uh, and in that data, we examined party race

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and gender,

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and we found first, very, very strong party effects.

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Um, all democratic panels we found have nearly triple

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the probability of ruling in favor

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of certification than all Republican panels.

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Um, and it's interesting to note

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that we compare these results to the magnitude

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of effects in the existing studies that focus on certain

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key substantive areas of law.

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And we find that this almost triple difference

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between all democratic

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and all Republican panels is comparable to

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or greater than the results

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that have been found in areas like a capital punishment,

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desegregation, and abortion.

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So it's notable, we argue that in this area

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that had been regarded as potentially

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as Steve suggested earlier, non-ideological,

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maybe not even worth studying the behavior

12:38.505 --> 12:41.325
of judges in this area of procedure, it turns out

12:41.325 --> 12:43.165
to be comparable and in many instances,

12:43.315 --> 12:45.565
more ideological than the issue areas,

12:45.565 --> 12:46.885
which we think is the most

12:47.765 --> 12:49.645
ide ideologically salient in our system.

12:50.425 --> 12:54.345
Um, therefore we conclude that the assumption

12:54.345 --> 12:57.465
that procedural law is non-ideological as false

12:58.095 --> 12:59.425
with respect to race and gender.

12:59.485 --> 13:02.385
We also find that identity matters to certification.

13:02.965 --> 13:05.105
Um, following the earlier race

13:05.105 --> 13:07.945
and gender panel effects studies, we find

13:07.945 --> 13:10.945
that the presence of one African American judge on a panel

13:11.365 --> 13:14.985
as compared to an all white panel, increases the probability

13:14.985 --> 13:18.275
that the panel will certify and

13:18.275 --> 13:21.715
therefore the kind of more optimistic normative conclusion

13:21.715 --> 13:24.955
that being a minority on a panel doesn't preclude you from

13:24.955 --> 13:28.395
affecting, the development of law is true with,

13:28.545 --> 13:30.595
with respect to race and certification.

13:31.135 --> 13:33.915
Um, but we, we observe something different

13:33.945 --> 13:35.115
with respect to gender.

13:35.975 --> 13:38.915
Um, we observe that one, the presence

13:38.915 --> 13:41.995
of one woman on a panel is not associated with higher rates

13:41.995 --> 13:43.915
of, class certification.

13:44.775 --> 13:47.835
Um, now that is, if viewed alone,

13:48.105 --> 13:50.155
that result will be consistent with the possibility

13:50.155 --> 13:51.395
that women just don't have different

13:51.395 --> 13:52.755
preferences about certification.

13:52.815 --> 13:55.035
So there's no, there's nothing to see here.

13:55.175 --> 13:58.475
One might say, however, we then proceed to look at

13:58.545 --> 14:00.435
what happens when there are two women on the panel.

14:00.775 --> 14:03.195
And we find that when women become a majority

14:03.375 --> 14:06.555
and there's two women and one man on the panel,

14:06.555 --> 14:08.955
those panels are very significantly more likely

14:08.975 --> 14:12.195
to certify classes than panels with,

14:12.495 --> 14:14.015
all men.

14:14.795 --> 14:18.575
Um, and this result we emphasize greatly in the paper,

14:18.685 --> 14:21.615
departs quite significantly from conventional wisdom in the

14:21.775 --> 14:23.375
literature and conventional wisdom.

14:23.395 --> 14:26.175
And the literature was fairly optimistic,

14:26.195 --> 14:28.455
in saying even, you know, minority groups

14:28.555 --> 14:30.175
who are underrepresented on the courts

14:30.175 --> 14:32.855
of appeals can actually have an impact when on a,

14:32.915 --> 14:36.135
in a minority on a panel,

14:36.135 --> 14:38.335
because of the fact that the panel effects of

14:39.055 --> 14:41.495
minority have been detected in past studies.

14:42.035 --> 14:44.215
And so we, what we're highlighting here is, while

14:44.215 --> 14:47.135
that may sometimes be true, that's not true with respect

14:47.135 --> 14:48.695
to gender and class certification.

14:49.395 --> 14:50.815
Um, and we suggest that that

14:50.815 --> 14:53.045
that's normally normatively troubling.

14:53.505 --> 14:56.885
And the reason that we characterize it as nly troubling is

14:56.885 --> 14:58.845
because of the fact that as a result of the kind

14:58.845 --> 15:00.885
of statistical laws of probability,

15:01.235 --> 15:03.405
when you're a minority on a circuit,

15:03.535 --> 15:05.605
let's say there's 15 judges on a circuit and you

15:05.625 --> 15:09.005
and a group is only, you know, a third of those judges,

15:10.155 --> 15:13.205
that when you take random draws of three judge panels,

15:13.325 --> 15:14.685
a much smaller fraction

15:14.685 --> 15:17.285
of the panels are gonna be a majority from that group.

15:17.665 --> 15:20.085
So for example, in our data, women

15:20.625 --> 15:24.285
are a majority only about half of the time relative

15:24.285 --> 15:26.645
to the percentage of votes that they have on the circuit.

15:27.345 --> 15:30.725
Um, and as a result of that, we argue the three judge panel

15:31.645 --> 15:35.405
structure dilutes the impact of the representation of women

15:35.665 --> 15:37.765
who in fact were already disadvantaged

15:37.765 --> 15:39.885
by being in a numerical minority on the panel.

15:40.225 --> 15:43.285
And so we emphasize that we see normative problems there.

15:43.745 --> 15:45.805
One takeaway relates to the point

15:45.805 --> 15:47.605
that I was making a moment ago,

15:47.715 --> 15:51.525
that the dominant view in the literature, has been

15:51.665 --> 15:55.555
to believe that if, women

15:55.775 --> 15:58.235
and non-white judges have different preferences,

15:58.345 --> 16:01.035
then those preferences will be observed in their votes

16:01.655 --> 16:03.235
on courts of appeals panels.

16:03.595 --> 16:06.275
'cause we're not living in a suppressed dissent world in

16:06.275 --> 16:09.035
which we think that they're just going along,

16:09.035 --> 16:10.275
and not influencing outcomes.

16:10.375 --> 16:12.155
But instead, we're living in a world in which

16:12.155 --> 16:13.635
through deliberation and bargaining,

16:13.635 --> 16:16.835
even when in a minority, they're able to influence,

16:17.155 --> 16:19.595
outcomes as a result of that belief.

16:20.335 --> 16:24.315
The main conclusion of the literature, is that gender

16:24.375 --> 16:27.235
and race rarely matter to the outcomes of cases,

16:27.695 --> 16:28.875
and they rarely matter

16:29.105 --> 16:31.715
because of the fact that the studies have detected

16:31.815 --> 16:33.475
and only a small range of cases.

16:33.695 --> 16:35.035
As Steve suggested earlier,

16:35.585 --> 16:37.435
that when something is really gender

16:37.615 --> 16:41.035
or racially salient, then the gender of judges, of the race

16:41.035 --> 16:42.395
of judges will matter.

16:43.815 --> 16:45.715
And that's been detected infrequently.

16:45.775 --> 16:47.235
So it largely doesn't matter.

16:47.865 --> 16:51.835
What we wanna point out is that the, our gender results show

16:51.835 --> 16:53.755
that you can't assume that if women

16:53.815 --> 16:55.835
or non-white judges have different preferences

16:56.025 --> 16:58.075
that it will be visible in their voting behavior.

16:58.685 --> 17:01.995
We've observed that there are circumstances such as gender

17:02.055 --> 17:03.275
and class certification

17:03.525 --> 17:07.035
where panels proceed in a pretty majoritarian way.

17:07.855 --> 17:11.115
Um, and therefore we wanna emphasize

17:11.305 --> 17:14.635
that we know much less than we thought we knew about whether

17:14.865 --> 17:17.515
race and gender is associated with different preferences

17:17.515 --> 17:21.435
of judges because it may be that our gender results

17:21.435 --> 17:25.395
with class certification reflect that more widely,

17:25.865 --> 17:28.395
non-white and women judges have different preferences,

17:28.455 --> 17:30.235
but do not express them in their votes.

17:32.375 --> 17:35.235
The mechanisms, as

17:35.535 --> 17:37.435
to explain why it is the case.

17:37.575 --> 17:40.475
Here's a further takeaway, which is the mechanisms that

17:41.175 --> 17:42.875
we might use to explain why women

17:42.895 --> 17:45.635
and non-white judges have different preferences,

17:45.865 --> 17:47.755
over class certification

17:48.255 --> 17:50.605
and the mechanisms that would explain why

17:53.545 --> 17:56.745
decision making is majoritarian as it relates to gender,

17:56.845 --> 17:58.465
but not as relates to race.

17:58.655 --> 18:00.345
They're mysterious and opaque

18:00.365 --> 18:03.945
and we don't have a strong handle about them as on, on

18:04.005 --> 18:07.185
as scholars, but yet we do speculate about them a little

18:07.245 --> 18:08.745
and Steve is gonna tell you about that.

18:10.265 --> 18:14.235
Yeah, it as trans substantive procedural law,

18:14.235 --> 18:16.515
the federal rules of civil procedure, including

18:16.575 --> 18:18.835
of course rule 23 on class actions

18:19.525 --> 18:23.155
apply across substantive domains and can enable

18:23.255 --> 18:24.835
or constrict access to justice.

18:25.895 --> 18:27.715
It controlling interpretation

18:27.715 --> 18:30.915
of a federal rule in an antitrust case, for instance,

18:31.665 --> 18:33.475
will carry over into its application

18:33.535 --> 18:34.715
and a voting rights case.

18:35.775 --> 18:38.395
One important insight of this article is

18:38.395 --> 18:41.035
that the trans substantive nature of federal rules

18:41.695 --> 18:44.675
can also convey the substantive effects of diversity

18:45.495 --> 18:49.315
across the landscape of American regulatory law.

18:50.245 --> 18:53.395
Court of appeals judges are smart, they understand

18:53.395 --> 18:56.595
that federal rules are trans substantive, as are the effects

18:56.595 --> 18:59.635
of some federal rules, importantly including Rule 23

19:00.295 --> 19:01.915
on the enforcement of substantive law.

19:02.735 --> 19:06.315
As strategic actors, it would be rational for them

19:06.855 --> 19:08.355
to take into consideration

19:08.775 --> 19:11.475
how class certification doctrine in a case

19:11.475 --> 19:14.275
that does not implicate issues on which they have strong

19:14.275 --> 19:18.555
preferences, might affect certification in cases that do

19:19.345 --> 19:20.995
alternatively, or in addition,

19:21.895 --> 19:23.875
our results may be the first evidence

19:24.105 --> 19:27.315
that trends substantive procedural law affecting access

19:27.375 --> 19:32.035
to justice is itself a policy domain in which women

19:32.575 --> 19:35.795
and African Americans have distinctive preferences.

19:36.815 --> 19:39.275
Our suggestions regarding mechanisms that may help

19:39.275 --> 19:42.995
to explain why two women on a panel but not one

19:43.615 --> 19:46.875
or associated with higher rates of pro certification voting

19:47.455 --> 19:50.595
and outcomes are more speculative and tentative.

19:51.495 --> 19:54.675
One exclamation the explanation is familiar in the

19:54.875 --> 19:56.515
literature on panel effects.

19:57.495 --> 19:59.915
Men may simply have greater

20:00.615 --> 20:03.395
or more intense preferences about certification

20:03.935 --> 20:05.675
and views that are so entrenched

20:06.025 --> 20:07.995
that their votes cannot be influenced

20:08.535 --> 20:10.635
and majoritarian dynamics prevail.

20:11.815 --> 20:13.355
Yet we pres, we observe

20:13.385 --> 20:17.035
that a single African American judge is associated

20:17.035 --> 20:20.635
with elevating the rate of pro certification outcomes.

20:21.785 --> 20:25.355
This leads us to consider recent scholarship on the gender

20:25.535 --> 20:29.155
gap in political discussions and decision making.

20:29.295 --> 20:32.075
In particular the work of Tali Denberg

20:32.415 --> 20:33.675
and Christopher Kitz,

20:34.045 --> 20:37.355
which suggests some disquieting possibilities

20:38.415 --> 20:41.515
if the dynamics identified by this research are at play.

20:42.295 --> 20:45.115
One possibility is that a woman in the minority

20:45.575 --> 20:49.405
who advocates for a preferred outcome is less successful

20:49.755 --> 20:52.765
because as a panel minority in a domain

20:52.765 --> 20:56.685
that does not elicit gender-based deference, she's regarded

20:56.685 --> 20:59.085
as less authoritative and influential.

21:00.235 --> 21:02.765
Another is that the reinforcement of another woman

21:04.285 --> 21:06.645
increases her propensity to advocate preferences

21:07.235 --> 21:10.645
that differ systematically from those of her male colleagues

21:11.185 --> 21:13.605
in areas without obvious gender salience.

21:13.985 --> 21:16.045
The majoritarian structure of the gender

21:16.935 --> 21:19.765
panel effects results counsel's caution in the

21:19.765 --> 21:21.205
interpretation of prior work.

21:21.255 --> 21:25.845
Purporting defined the gender is consequential to court

21:25.845 --> 21:28.725
of appeals decision making only in rare circumstances

21:29.435 --> 21:32.965
that work has been based largely on sample sizes too small

21:33.545 --> 21:35.845
to evaluate panels with a majority of women,

21:36.305 --> 21:37.965
or it simply did not evaluate them.

21:38.925 --> 21:41.685
Null results that do not isolate votes

21:41.745 --> 21:45.405
and outcomes when women are in a panel majority cannot

21:45.555 --> 21:48.845
foreclose the existence of large differences in preferences

21:49.375 --> 21:50.405
along gender lines

21:50.985 --> 21:54.365
and they may reflect suppression of women's influence.

21:54.625 --> 21:57.125
Couple quick things I'd add to what Steve just said.

21:57.465 --> 22:01.405
One is, one is his answer causes me to want to observe,

22:01.425 --> 22:06.045
an empirical finding that, that I didn't mention before.

22:06.545 --> 22:08.205
Um, and that is the empirical finding

22:08.205 --> 22:10.285
that in the paper on class certification.

22:10.785 --> 22:14.645
Um, we also, we also have models where we drop all claims

22:14.875 --> 22:16.485
that are claims of civil rights

22:16.485 --> 22:18.165
or discrimination in order

22:18.165 --> 22:21.165
to see whether the pa the dynamics are the same,

22:21.165 --> 22:22.205
that gender does matter

22:22.205 --> 22:24.525
and race does matter, in cases

22:24.595 --> 22:26.085
that do not implicate race

22:26.145 --> 22:28.165
or gender discrimination or civil rights.

22:28.345 --> 22:29.685
And we find that they do.

22:30.105 --> 22:32.645
Um, and therefore one of the things about the paper

22:32.645 --> 22:34.405
that I find interesting is that contrary

22:34.405 --> 22:36.845
to existing literature, we see recent race

22:36.845 --> 22:39.165
and gender mattering in domains

22:39.165 --> 22:41.245
that do not expressly deal with race or gender.

22:41.245 --> 22:44.405
And then that ties to Steve's observation that,

22:44.835 --> 22:47.045
that those judges are smart and strategic

22:47.065 --> 22:49.645
and may be recognizing the importance

22:49.645 --> 22:51.725
of class certification to race and gender.

22:52.145 --> 22:53.285
So I just wanted to note

22:53.285 --> 22:55.045
that empirical finding in the paper.

22:55.665 --> 22:59.845
Um, and then secondly, I'll note one final thing relating to

22:59.845 --> 23:03.685
what Steve said, and that is the interesting,

23:04.075 --> 23:07.045
explanation that Steve was discussing about potentially the

23:07.045 --> 23:09.125
majoritarian gender dynamics is

23:09.125 --> 23:10.245
pretty distinctive to gender.

23:10.985 --> 23:13.485
Um, and yet we do wanna say at the end of the paper

23:13.555 --> 23:15.325
that the fact that we've observed

23:15.325 --> 23:17.765
that such majoritarian dynamics can exist,

23:18.865 --> 23:21.045
we think should cause people to pause

23:21.305 --> 23:25.285
before making inferences about null results on race as well,

23:25.735 --> 23:27.805
which is to say life is complicated.

23:28.055 --> 23:30.525
There are many different policy domains, domains

23:30.525 --> 23:32.965
and dynamics that could be at play that we're not able

23:32.965 --> 23:34.765
to observe on these panels

23:35.155 --> 23:37.325
that are not observable to us as scholars.

23:37.545 --> 23:39.765
And so we think it's important to keep an open mind

23:39.765 --> 23:43.205
to the possibility that sometimes null results in race may

23:43.205 --> 23:45.965
be masking similar majoritarian dynamics.

23:46.385 --> 23:48.165
The reason that we wouldn't know that is

23:48.165 --> 23:50.405
because those prior studies did not study

23:50.465 --> 23:55.425
or examine whether the changes differed when there were two,

23:55.685 --> 23:57.385
non-white judges on a panel.

"Judicial Nomination Battles: The Intersection of Ideology, Diversity, and Decision-Making"

00:00:00 - Well, political conflict over federal judicial nominees has long been, a familiar feature of the American political landscape. presidents have increasingly come to regard, federal judges with aligned preferences as critical to elaborating, and implementing their agendas. Political opponents of presidential administrations are, of course, attentive to the same concerns, and it seems that the harder president's work, to nominate ide ideologically aligned, candidates. The harder opponents work to defeat them, often characterizing them as ideological extremists. Now the focus of this battle extends beyond conventional markers of ideology
00:00:47 - and racial diversity, which are often tied to issues of representation. And here, Hannah Pitkin classic distinction between descriptive and substantive representation is useful. One goal of increasing diversity on the bench is to create a bench that descriptively reflects the country's diversity, which itself can promote the judiciary's appearance of impartiality and enhance its democratic legitimacy. Another goal concerns legal substance. Some people believe that women and racial minority judges have different preferences that are potentially consequential to case outcomes,
00:01:29 - males to issues of discrimination and inequality in their substantive decision making. The primary reason given for this view is that women and racial minority judges are more likely to have seen or been subjected to discrimination. And these distinctive life experiences make the judges more likely to believe a plaintiff's evidence of discrimination and to empathize with such plaintiffs. The debates about substantive representation that, Steve was talking about, kind of turn on on a core empirical question. and the core empirical question is do do the identity
00:02:09 - that they decide cases? and there there's a very large political, science literature focused on law and the iden, the judge identity characteristics that political scientists have principally been interested in our political party using the party of the appointing president and the federal system, and also studying, the race and gender of the judge and its relationship to, outcomes. That literature, in contrast with our paper, has tended to focus on areas of, big salient, substantive law questions like voting. They focus on types of cases like voting rights cases, desegregation cases, employment discrimination cases, et cetera.
00:02:53 - that we draw upon and mobilize in the paper concerns panel effects. And the idea of panel effects in that literature is that it has demonstrated that the identity, when you try to study the votes of judges on panels, the identity of the other members of the panel actually have more explanatory power than the judge's own identity. I'll give an example of what I mean by that in a second. The landmark studies focused on party, Richard Reve, Frank Cross, and Emerson Tiller were key scholars that kind of innovated and discovered these panel effects. and they found that the political party
00:03:31 - of the panel were more important in explaining one judge's vote than the judge's own political party. And to be concrete. 'cause I know that's abstract. It's like if you're a Republican judge, it turns out that we can predict your vote better by knowing whether you're sitting with two Republicans or knowing whether you're sitting with two Democrats. That tells us more about how you're gonna vote than your own party. So that those insights were then extended to areas of race and gender, and extending it to race and gender. studies found that the presence of just one, woman or one non-white judge or African American judge, depending on the study, could increase the probability

"The Influence of Minority Judges on Panel Outcomes and the Dynamics of Ideological Decision-Making"

00:04:15 - And this was, thought to be particularly significant because of the fact that the, the effect was present even when the woman or the non-white judge was in the minor numerical minority on the panel, there was one of them sitting with two men or an African American sitting with two whites, and yet they were able to influence the outcome of the case. that is decided based on a majority, vote of the judges. And I would just want to add one thing that when we talk about what we mean by minority on the panel, we're talking about three judge panels, which are the focus of our study. and that the minority simply means your identity
00:04:57 - by the other two on the panel that makes you a panel minority. So that's my my thoughts and response to that question. Now, scholarly neglect of the possible influence of ideology, is not surprising regarding procedural law in general, because traditionally procedure in the United States was called adjective law, and it was represented as technical details. In short, the sort of law that ought to be left to the experts, namely judges, the neglect is more puzzling with respect to class actions, which have long been the subject of ideologically inflected debate aggregation.
00:05:39 - enormous regulatory power because class certification has the capacity of, of transforming a wage or consumer grievance over modest economic stakes, that would never be litigated individually into a claim for massive damages when litigated on behalf of a class providing the prospect of a remedy for large groups of persons and of shaping the behavior of defendants in favor of compliance. In prior work on the Supreme Court's decisions, interpreting federal rules of civil procedure
00:06:20 - Sean and I showed that beginning in 1995, the justice's votes in such cases were more strongly associated with ideology than were their votes on merits issues, particularly given increasing attention to ideology and lower federal court appointment, appointments. In recent decades, our goal in collecting comprehensive data on class actions, this class action decisions by the courts of appeals included determining whether ideology plays a similar role at that level. Now, the neglect of gender
00:07:00 - decisions may reflect that the apparent consensus that is emerged in the literature on the courts of appeals that Shawn referred to, that judges ra gender and race, are associated with variation in preferences only in a narrow band of cases that directly and explicitly implicate discrimination and inequality. Our own prior work also gave cause to question that assumption as to procedural law, including rule 23 that affects access to justice and does so across substantive domains, including in particular, those
00:07:39 - There is disagreement in the literature, about the nature of the panel dynamics. the, the literature that the, the theoretical literature that tries to grapple with this question of what's really going on on these panels starts, I think, with an important empirical observation that's been made by money. And the empirical observation is these panels are overwhelmingly unanimous. I think in our class action, I can't remember, literally, I believe they might have been 98% unanimous in some areas, 95% unanimous. And that we, we observe a very high level of unanimity on court of appeals panels, even in areas where we know there's a lot of ideological disagreement among judges from case to case to case,

"Unpacking Judicial Dynamics: Theories of Dissent and Influence in Courtroom Decision-Making"

00:08:21 - So there's one set of theories that, to try to explain this, they're referred to as kind of dissent avoidance or suppressed dissent theories. and these are theories that say the unanimity actually masks disagreement. There are people who would be in the dissent who disagree with the majority, but they elect not to write the dissent. and there's different theories about why this is so, one is that, you know, they're, they're overworked as it is. And taking on the extra work of writing in dissent that's not gonna affect the outcome is undesirable. Other theory suggest that there are norms on the court that it's regarded as bad for the court to dissent 'cause it makes the decisions look less credible
00:09:04 - I mean, therefore, the norms encourage people to, to suffer quietly and sign on to decisions that they disagree with. So this sort of de de depressed dissent, suppressed dissent story is a view that, the majority's views prevail without being affected by the wouldbe dissenter. And the dissenter just quietly dissent, that the wouldbe dissenter quietly goes along. There's a separate set of theories, and the separate set of theories focus on the idea that there are things that are happening on the panel that actually allow the wouldbe dissenter to affect the outcome. And therefore, it's precisely because of the, the, the wouldbe dissenter has influence
00:09:47 - And from this perspective, the two key ideas are deliberation and bargaining. One of them is the dissenter just expresses views and makes arguments that the majority might not otherwise have heard or been attentive to, and they're persuaded. And therefore, when the dissent, when the would-be dissenter is there, in some fraction of cases, they do influence the outcome. A related, theory is that the, is the bargaining theory. And the bargaining theory is that the would be dissenter says, look, if you don't make concessions to me in this way or that way, I'm going to file a dissent. and that dissent is gonna expose inadequacies of your opinion that dissent might invite people
00:10:29 - and that dissent might corrode the legitimacy of the court as compared to a world in which everybody agrees from different backgrounds on what the right answer is. So that's the key. other theory, to deliberation is bargaining. I do, I would wanna ma make one more point, and that is that as compared to the suppressed dissent theories, the bargaining or deliberation theories that allow minorities to affect majorities have kind of positive normative implications. And they have positive normative implications in saying, even though you're not on the majority, you have, you have a capacity to participate in making
00:11:09 - and influencing the development of law, as compared to a suppressed dissent story in which, you have no effect. And just quietly go along. In our, paper, we, create original data. No data had been collected over time of certification behavior on the courts of appeals, and we created a comprehensive data set of all court of appeals decisions, ruling on certification under rule 23, between 1967 and 2017. and in that data, we examined party race and gender, and we found first, very, very strong party effects.
00:11:56 - the probability of ruling in favor of certification than all Republican panels. and it's interesting to note that we compare these results to the magnitude of effects in the existing studies that focus on certain key substantive areas of law. And we find that this almost triple difference between all democratic and all Republican panels is comparable to or greater than the results that have been found in areas like a capital punishment, desegregation, and abortion. So it's notable, we argue that in this area that had been regarded as potentially

"Judicial Diversity: The Impact of Gender and Race on Class Certification Outcomes"

00:12:35 - maybe not even worth studying the behavior of judges in this area of procedure, it turns out to be comparable and in many instances, more ideological than the issue areas, which we think is the most ide ideologically salient in our system. therefore we conclude that the assumption that procedural law is non-ideological as false with respect to race and gender. We also find that identity matters to certification. following the earlier race and gender panel effects studies, we find that the presence of one African American judge on a panel as compared to an all white panel, increases the probability
00:13:18 - therefore the kind of more optimistic normative conclusion that being a minority on a panel doesn't preclude you from affecting, the development of law is true with, with respect to race and certification. but we, we observe something different with respect to gender. we observe that one, the presence of one woman on a panel is not associated with higher rates of, class certification. now that is, if viewed alone, that result will be consistent with the possibility that women just don't have different preferences about certification. So there's no, there's nothing to see here.
00:13:58 - what happens when there are two women on the panel. And we find that when women become a majority and there's two women and one man on the panel, those panels are very significantly more likely to certify classes than panels with, all men. and this result we emphasize greatly in the paper, departs quite significantly from conventional wisdom in the literature and conventional wisdom. And the literature was fairly optimistic, in saying even, you know, minority groups who are underrepresented on the courts of appeals can actually have an impact when on a, in a minority on a panel,
00:14:39 - minority have been detected in past studies. And so we, what we're highlighting here is, while that may sometimes be true, that's not true with respect to gender and class certification. and we suggest that that that's normally normatively troubling. And the reason that we characterize it as nly troubling is because of the fact that as a result of the kind of statistical laws of probability, when you're a minority on a circuit, let's say there's 15 judges on a circuit and you and a group is only, you know, a third of those judges, that when you take random draws of three judge panels, a much smaller fraction of the panels are gonna be a majority from that group.
00:15:20 - are a majority only about half of the time relative to the percentage of votes that they have on the circuit. and as a result of that, we argue the three judge panel structure dilutes the impact of the representation of women who in fact were already disadvantaged by being in a numerical minority on the panel. And so we emphasize that we see normative problems there. One takeaway relates to the point that I was making a moment ago, that the dominant view in the literature, has been to believe that if, women and non-white judges have different preferences,
00:16:01 - on courts of appeals panels. 'cause we're not living in a suppressed dissent world in which we think that they're just going along, and not influencing outcomes. But instead, we're living in a world in which through deliberation and bargaining, even when in a minority, they're able to influence, outcomes as a result of that belief. The main conclusion of the literature, is that gender and race rarely matter to the outcomes of cases, and they rarely matter because of the fact that the studies have detected and only a small range of cases. As Steve suggested earlier, that when something is really gender or racially salient, then the gender of judges, of the race

"Unpacking the Complexities of Judicial Preferences: Gender, Race, and Decision-Making Dynamics"**

00:16:43 - And that's been detected infrequently. So it largely doesn't matter. What we wanna point out is that the, our gender results show that you can't assume that if women or non-white judges have different preferences that it will be visible in their voting behavior. We've observed that there are circumstances such as gender and class certification where panels proceed in a pretty majoritarian way. and therefore we wanna emphasize that we know much less than we thought we knew about whether race and gender is associated with different preferences of judges because it may be that our gender results
00:17:25 - non-white and women judges have different preferences, but do not express them in their votes. The mechanisms, as to explain why it is the case. Here's a further takeaway, which is the mechanisms that we might use to explain why women and non-white judges have different preferences, over class certification and the mechanisms that would explain why decision making is majoritarian as it relates to gender, but not as relates to race. They're mysterious and opaque and we don't have a strong handle about them as on, on
00:18:07 - and Steve is gonna tell you about that. Yeah, it as trans substantive procedural law, the federal rules of civil procedure, including of course rule 23 on class actions apply across substantive domains and can enable or constrict access to justice. It controlling interpretation of a federal rule in an antitrust case, for instance, will carry over into its application and a voting rights case. One important insight of this article is that the trans substantive nature of federal rules can also convey the substantive effects of diversity
00:18:50 - Court of appeals judges are smart, they understand that federal rules are trans substantive, as are the effects of some federal rules, importantly including Rule 23 on the enforcement of substantive law. As strategic actors, it would be rational for them to take into consideration how class certification doctrine in a case that does not implicate issues on which they have strong preferences, might affect certification in cases that do alternatively, or in addition, our results may be the first evidence that trends substantive procedural law affecting access
00:19:32 - and African Americans have distinctive preferences. Our suggestions regarding mechanisms that may help to explain why two women on a panel but not one or associated with higher rates of pro certification voting and outcomes are more speculative and tentative. One exclamation the explanation is familiar in the literature on panel effects. Men may simply have greater or more intense preferences about certification and views that are so entrenched that their votes cannot be influenced
00:20:11 - Yet we pres, we observe that a single African American judge is associated with elevating the rate of pro certification outcomes. This leads us to consider recent scholarship on the gender gap in political discussions and decision making. In particular the work of Tali Denberg and Christopher Kitz, which suggests some disquieting possibilities if the dynamics identified by this research are at play. One possibility is that a woman in the minority who advocates for a preferred outcome is less successful

"Gender Dynamics and Judicial Decision-Making: Implications of Panel Composition and Authority"

00:20:52 - that does not elicit gender-based deference, she's regarded as less authoritative and influential. Another is that the reinforcement of another woman increases her propensity to advocate preferences that differ systematically from those of her male colleagues in areas without obvious gender salience. The majoritarian structure of the gender panel effects results counsel's caution in the interpretation of prior work. Purporting defined the gender is consequential to court of appeals decision making only in rare circumstances that work has been based largely on sample sizes too small
00:21:36 - or it simply did not evaluate them. Null results that do not isolate votes and outcomes when women are in a panel majority cannot foreclose the existence of large differences in preferences along gender lines and they may reflect suppression of women's influence. Couple quick things I'd add to what Steve just said. One is, one is his answer causes me to want to observe, an empirical finding that, that I didn't mention before. and that is the empirical finding that in the paper on class certification. we also, we also have models where we drop all claims
00:22:16 - or discrimination in order to see whether the pa the dynamics are the same, that gender does matter and race does matter, in cases that do not implicate race or gender discrimination or civil rights. And we find that they do. and therefore one of the things about the paper that I find interesting is that contrary to existing literature, we see recent race and gender mattering in domains that do not expressly deal with race or gender. And then that ties to Steve's observation that, that those judges are smart and strategic and may be recognizing the importance of class certification to race and gender. So I just wanted to note that empirical finding in the paper.
00:22:59 - what Steve said, and that is the interesting, explanation that Steve was discussing about potentially the majoritarian gender dynamics is pretty distinctive to gender. and yet we do wanna say at the end of the paper that the fact that we've observed that such majoritarian dynamics can exist, we think should cause people to pause before making inferences about null results on race as well, which is to say life is complicated. There are many different policy domains, domains and dynamics that could be at play that we're not able to observe on these panels that are not observable to us as scholars.
00:23:55 - to the possibility that sometimes null results in race may be masking similar majoritarian dynamics. The reason that we wouldn't know that is because those prior studies did not study or examine whether the changes differed when there were two, non-white judges on a panel.

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