Virtually all appellate courts are collegial (i.e., multimember) courts. Students of judicial behavior (both political scientists and members of the legal academy), particularly those who view judicial choice through the lens of strategic behavior, have paid quite a bit of attention to this characteristic of appellate courts, . Of interest recently have been the strategic implications of the panel decisionmaking mechanism relied on by the U.S. courts of appeals. The courts of appeals decide most cases with the use of rotating, three-judge panels, but the decision of a panel is subject to two kinds of review: review by the circuit en banc and review by the U.S. Supreme Court. Presumably, a strategic member of a panel could attempt to signal to the circuit en banc or to the Supreme Court when, contrary to her preferences, the panel decision is at odds with circuit law or Supreme Court precedent. The key, then, from a strategic perspective, is to understand how the ideological composition of a panel (relative to the circuit or relative to the Supreme Court) can induce strategic behavior on the part of an individual judge.

This is precisely the task to which Professor Kim sets herself in Deliberation and Strategy on the United States Courts of Appeals: An Empirical Exploration of Panel Effects. To do so, she uses the votes cast in Title VII sex discrimination cases decided with published opinions in the courts of appeals. Specifically, Professor Kim focuses on counter-ideological voting. The measurement strategy she takes is elegant; she defines counter-ideological voting as an instance in which a judge votes liberally when she is expected, based on her ideological preferences, to vote conservatively, or vice versa. The use of this dependent variable is advantageous in that strategic accounts of judicial vote choice are explicitly about whether a judge modifies her behavior systematically in response to the anticipated actions of other relevant actors (e.g., the Supreme Court). This dependent variable is explicitly about change in anticipated behavior. Moreover, Professor Kim’s empirical analyses are constructed to determine whether the likelihood of counter-ideological voting varies according to the alignment of a judge’s preferences with those of her panel mates and, ultimately, either those of the circuit en banc or the Supreme Court. She concludes that judges do not anticipate the likely reactions of the Supreme Court but do bear in mind the likely reactions of the circuit en banc.