Norm Erosion on the Courts of Appeals

NORM EROSION ON THE COURTS OF APPEALS Have judges on the U.S. Courts of Appeals lost their way? They are quoting Will Ferrell movies and “writing for Twitter;” they are authoring national op-eds and announcing law clerk hiring boycotts. While these moves are hard to quantify, they are accompanied by other unusual behavior that can be measured. Over the past decade, there has been a statistically significant upturn in partisanship in en banc review. Appellate judges increasingly divide along party lines when review is granted and issue non-panel dissents in partisan teams when review is denied. They are also “going senior” only when their party inhabits the White House – a strategic choice with a statistically significant higher rate since 2013 and a dramatic uptick since 2020. In this article, we make use of original data to document these phenomena, and argue that we are witnessing a potentially fundamental shift that goes to the heart of what it means to be a federal judge. Historically, federal appellate judges lean into collegiality and nonpartisan norms: they embrace a model of decision-making that fosters deliberation. The reputation prized was a judge with clear views for sure, but one also committed to the enterprise of deciding hard issues collectively. These norms are not about mere politeness; they intentionally create space for principled and sometimes difficult discussion to occur. Conservative and liberal judges alike bought into this brand. These norms are deeply-rooted and mutually-reinforced among judges who care about their reputation with one another. But that brand of appellate judging has new competition. For reasons we explore, there is now a separate audience to impress and a different reputation to build. This sub-set of appellate judges (most of whom were appointed by President Trump, although certainly not all Trump judges fit this mold) are still committed to the rule of law and still part of the legal elite. But they are also connected to national ideological groups and to each other in new ways – so much so that they seem willing to trade off reputation interests in the eyes of their circuit colleagues in favor of praise from their national audience and inter-circuit peers. Their new loyalty is to a shared cause even if that means going it alone, bucking norms, and ruffling feathers on the circuit. We explore the possibility that this norm erosion is limited to a set of repeat players and unique circumstances not destined to repeat. But it is also possible we have reached a defining moment for the federal judiciary. The consequences are hard to overstate: if norms that form the fabric of the U.S. Courts of Appeals are fraying, the lower courts as we know them are about to change completely.