Decision-Making Rules and Judicial Strategy On the United States Courts of Appeals

HE COMBINED use by the courts of appeals of a three-member rotating panel procedure with an en banc system provides a provocative context for testing hypotheses which relate the strategic options available to policyoriented judges with institutional decision-making rules.' One question of particular interest concerns the extent to which the dual decision-making procedures of the intermediate appellate courts facilitate a minority's ability to circumvent a majority's policy preference. Superficially, a system of rotating panels appears to facilitate a proportionate expression of minority views on a court of appeals. To grasp this proposition, the policy outcomes on the United States Supreme Court as determined by the decisionmaking rules operative there may be compared with a hypothetical instance in which the decisions of the high court are determined by three-judge panels. Two assumptions are made: (1) that the court is composed of two opposing blocs on civil liberty issues, a liberal majority of six and a conservative minority of three; and (2) that defection from a bloc is not permissible. Under these conditions, the liberal segment of the court could determine the gamut of civil liberty policy to be formulated by the court. The conservative minority must be content with either: (1) complete minority status, that is, the status quo; (2) joining the majority in order to parake in the available power to be distributed; (3) capturing votes from the majority in order to form a new coalition; or (4) awaiting shifts in the court's personnel that would be conducive to their conceptions of civil liberty policy. However, if the Supreme Court changed its decision-making procedures so as to permit the formation of threemember panels, the contours of majority-minority conflict would alter dramatically. Incorporating the additional assumptions (1) that all panels may appear with equal probability and (2) that empirically, all panels do in fact contribute equally to decision-making, then a minority of three would clearly contribute to policy-making in those instances when two members of the minority coalition combine to form a panel with a member of the majority or when the three minority members meet simultaneously to form a panel. An implicit assumption of the first eventually is