Evidence Outside the Trial Record | Constitutional Theory | “Making” Law
Empirical Study of Judicial Deliberations
Judging the Bench: Judicial deliberations
Judge Eugene Siler ’63, LL.M. '95: “It’s usually collegial. We talk to the other judges. Of course, if we have oral argument, we confer right after oral argument. We communicate mostly by email but sometimes we talk to each other about the case….
“We have had partisan differences a few times in our circuit. Other circuits have had some conflicts like that. Everybody sort of points to the 6th Circuit as having the most conflicts that come out in the open, but I think it’s happened in other circuits, too. Just not as openly as ours has been…”
Judge Boyce Martin '63: “The United States has thousands of judges. I would say 89% of them make their decisions based on the law as they read it, and the rest make decisions off the top of their head without any real thought. The appellate courts, which are a very small part of this group, have contributed to the confusion. Leadership from the Supreme Court on down has not been consistent. If you read opinions in the 6th Circuit and you want a position, you could probably find cases on both sides….
“We have changed dramatically in my 34 years on the court. When I began as an appellate judge, it was three judges on a panel sitting eyeball to eyeball after oral argument. We didn’t decide who was going to do any of the work until after the oral argument. Today, we have dramatically reduced oral argument in our circuit. We divide up the cases in advance. One judge is responsible for each case. When I started, I didn’t share bench memos or anything. I did my own independent work in all cases. Now, if you do that, everybody gets hacked at you because everybody wants to split it up and share it so they only have to do a third of the work as opposed to doing every case separately….”
Chief Justice Myron Steele ’70, LL.M. '04: “The other four members of my court are just as smart as they can be and have a fabulous work ethic. We work hard at building consensus whenever we can, even if the opinion doesn’t read exactly the way we would’ve written it alone. I’m very fortunate in that respect.”
Chief Justice Cynthia Kinser '77: “In Virginia, we’ve always been an extremely collegial court. Yes, we may have differences of opinion in a given case, but the collegiality has never been absent at all. I don’t think that you see the kinds of fights that you see in some of the federal appellate courts….
“Oral argument is very important. I go into all the cases having read the briefs and done the research and having some view about it, but there are many times when oral argument changes that view. Sometimes you go in on top of the fence and really hope that what you hear in oral argument will push you one way or the other. I think it’s very important and is invaluable. I would never want us to do away with it….
“I don’t know that it’s necessarily my role to try to get people to all come to the same decision on a case because I respect all of my colleagues’ viewpoints. We’re not always going to agree on everything, but I think it’s my job to make sure that there’s been a full discussion of the issues so the person who’s writing the opinion understands where everyone is.