Judge Diane P. Wood of the United States Court of Appeals for the Seventh Circuit delivered the 2011–2012 Brennan Center Jorde Symposium lecture at Berkeley Law School on October 26. Judge Wood has served on the 7th Circuit for 16 years, which at full strength has 11 judges. In her lecture, she shared her unique perspective on getting along, disagreeing and saving the disagreement for another day on the multi-member appellate bench. 
Judge Wood began with a wistful observation: “the district court judge is the queen, mistress of all she surveys.” Though the appellate court lurks in the background, only 14 percent of all district court cases are appealed, and estimates are that more than 90 percent of those are affirmed (she later quipped that another lecture topic might be “Why do litigants appeal?”). But the workload of the Courts of Appeals is still a heavy one: in 16 years, Judge Wood sat on 4,500 panels resulting in 2,569 reported decisions. In all, she has written separately 84 times, a ratio that is about average for Courts of Appeals decisions (3.3 percent of all federal appellate decisions include a separate writing).
More attention is paid to separate writings at the Supreme Court level: of the 75 Supreme Court decisions in 2010, 47 included dissents (38 were unanimous). At the Courts of Appeals level, the rate of dissent is much lower: 2.6 percent for all such decisions and 7.8 percent for published opinions.
So why does a Court of Appeals judge decide to write separately? Judge Wood began by recalling the words of her old boss, Justice Harry A. Blackmun, when he administered the oath of office to Judge Wood in Spider Lake, Wisconsin (his vacation home) many years ago:
“Even though you will sit primarily with two other judges, as you sit in groups of three on the federal appellate bench, your vote will essentially be yours, and not theirs. There will be moments of a feeling of reward and satisfaction, and moments with a feeling of disappointment, and certainly moments of loneliness, despite the fact that you have a multiple judge court. Because that vote is yours, and only you can make it. Don’t let it discourage you.”
Judge Wood described the many reasons that appellate judges might choose to write separate concurrences and dissent, and the good results that sometimes result from this extra effort.
But, Judge Wood pointed out, there are risks to parting with one’s colleagues to write separately: the risk that one might become known as the “perpetual dissenter” (she recalled Justice Brennan’s consistent dissent in every death penalty case that came before the Supreme Court); the risk that dissent might leave the public with the impression that courts can be scary political institutions, populated by people with strong opinions and lifetime tenure (citing Bush v. Gore); and the risk to interpersonal relations (Judge Wood quoted her colleague Judge Richard A. Posner, who compared serving on the Court of Appeals to “being married in a society that forbids divorce”).
Judge Wood finished with a comprehensive analysis of her own reasons for dissent over the years, noting some good outcomes (her dissent in United Phosphorous Ltd. v. Angus Chemical Co. was followed in a recent Third Circuit case, resulting in a split among the Circuits). But she also noted, “No one writes a dissenting opinion under the illusion that vindication is inevitable.” Her dissent in Crawford v. Marion County Election Board (in which the 7th Circuit upheld Indiana’s onerous election day voter identification requirement) did not prevent the Supreme Court from affirming.
The Brennan Center Jorde Symposium is an annual event, created in 1996 to sponsor top scholarly discourse and writing from a variety of perspectives on issues central to the legacy of William J. Brennan, Jr. A unique feature of the Symposium is that two prominent scholars are invited to give commentaries on the lecture. Judge Marsha Berzon of the United States Court of Appeals for the Ninth Circuit, and a former law clerk to Justice Brennan, was the first to comment. Judge Berzon noted that Judge Wood’s analysis was comprehensive and fascinating from her perspective as a judge from another Circuit, a useful addition to a body of scholarship she described as “what do judges think?” Judge Berzon discussed modern theories of collaboration and good decision-making, and compared them to the process that has evolved of judging on multi-member panels. The possibility of dissent and the process of adversarial collaboration are both bulwarks against cognitive fallacies, and Judge Berzon praised the common law judges from long ago who helped shape the current multi-member appeals courts.
Professor Kevin Quinn, of Berkeley Law School, admitted that he is a political scientist among the ranks of those who study judicial thinking and decision-making. He noted that scholarship about multi-member panels is in its infancy, most research having been focused on Supreme Court decision making or, even earlier, viewing judicial decision-making as a solitary process.
Part II of the Brennan Center Jorde Symposium will be held April 16, 2012 at New York University School of Law.
Photo 1: From right to left: California Law Review Editor in Chief Philip Tassin, Judge Diane P. Wood, Judge Marsha Berzon, California Law Review Brennan Center Symposium Editor Greg Miller.
Photo 2: Judge Diane P. Wood.
Photo 3: Judge Marsha Berzon.
Photo 4: Professor Kevin Quinn.