While scholars frequently offer ideology as a primary explanation for judicial behavior, judges, and some scholars, emphasize the importance of collegiality on multimember courts. But there is disagreement over how to determine when collegiality is at work, and what type of multimember court is more likely to exhibit collegiality among its judges. Resolving these competing claims calls for a valid measure of collegiality.
This Article develops novel measures of collegiality based on dissenting judges’ expressions of collegiality towards judges in the majority. It uses judge-level and court-level databases to validate these measures by showing that the novel measures correlate with some, but not other, measures of dissent aversion—a feature of multimember courts that commentators see as aligned with collegiality.
The Article then investigates empirically settings where judges tend to act collegially and the characteristics of courts that tend to be collegial. Analysis reveals that collegiality is not associated with ideological homogeneity and is more likely to be found in published opinions; that the Supreme Court is more collegial than are the courts of appeals; and that collegiality is less likely to be found on courts with large complements of judges, and on courts with chambers spread across more courthouses.
Jonathan R. Nash,
Measuring Judicial Collegiality Through Dissent,
Buff. L. Rev.
Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol70/iss4/4