Larsen, Alli Orr and Devins, Neal, Circuit Personalities (February 15, 2022). Virginia Law Review, Vol. 108 (Forthcoming 2022), Available at SSRN: https://ssrn.com/abstract=4035789 or http://dx.doi.org/10.2139/ssrn.4035789
The U.S. Courts of Appeals do not behave as one; they have developed circuit-specific practices that are passed down from one generation of judges to the next. These different norms and traditions (some written down, others not) exist on a variety of levels: rules governing oral argument and the publishing of opinions, en banc practices, social customs, case discussion norms, law clerk dynamics, and even self-imposed circuit nicknames. In this article, we describe these varying “circuit personalities” and then argue that they are necessary to the very survival of the federal courts of appeals. Circuit-specific norms and traditions foster collegiality and other rule of law values and, in so doing, serve as a critical counterweight to the pernicious nationalization and partisan politics of federal judicial appointments.
Making use of both empirical measures and interviews conducted with eighteen U.S. Court of Appeals judges, this article shows how same-circuit appeals judges forge a unique and consequential bond with each other. This is true of Democrat and Republican appointees; it is true of a just-appointed judge or a senior-status judge. By mitigating national partisan forces, “circuit personalities” facilitate the very model of judging employed by the U.S. Courts of Appeals – one that assumes any random panel of three can deliberate and deliver a correct result for the court as a whole. This model of judging simply does not work if the judges fall prey to “my team your team” impulses -- forces which are growing steadily as a byproduct of the new nationalization of judicial appointments. To be sure, judges are ideologically divided and partisan divisions among them are sometimes inevitable. But the best way to prevent those divisions from overtaking appellate courts altogether is for judges to invest in the ties that bind them – to celebrate the local and resist growing calls that they become “partisan warriors” in a national war.
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