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COOPERATION: JUDGES AND THEIR COLLEAGUES

A judge may not only follow her own personal views to a greater or lesser extent but may be more or less cooperative with her fellow judges. She may be averse to conflict, working and agreeing with others because she does not want them to think she is difficult or contrarian. She may wish to work toward a common agreement on the court as she believes agreement fosters trust or belief in the court. Or she may believe that working in a deliberative fashion leads to better decisions.

More negatively, the judge may merely wish to avoid the work of having to develop a dissenting opinion if she does not go along with the majority. Thomas Jefferson, criticizing Chief Justice John Marshall’s policy of having the uS Supreme Court issue a single unanimous decision rather than seriatim decisions (that is, each judge presenting his own decision), commented that “The practice is certainly convenient for the lazy, the modest, & the incompetent. It saves them the trouble of developing their opinion methodically and even of making up an opinion at all.”[1] Alternatively, a judge could also agree with other judges on some appeals in order to obtain their agreement in other appeals about which she cares more, just as politicians regularly trade votes (or logroll) on legislation to further their overall policy goals. If judges are avoiding work or trading votes to best meet their policy views, a court could appear to be very cooperative. The underlying reason for the agreement therefore can be important.

If we turn again to our comparison across high courts in Figure 1-1, we see that courts may be more or less cooperative depending on how the judges interact. The most cooperative or collegial courts lie at the bottom of the vertical line. In its simplest sense, one can think of collegiality as judges agreeing on the final result, though it may involve also agreeing on a common reason for the result.

At the top of the vertical line sit courts where judges are more independent. Judges may not cooperate. A judge may simply not agree or be unwilling to find common ground with judges with different personal views. She may then dissent if she disagrees with the majority of other judges. She may view her role as providing an independently thought-out answer to whatever question is raised on the appeal. She could see such independence as fostering coherence and consistency in her reasoning and providing the greatest scope for diversity of views and values, which deepens the understanding of the law. Judges on courts toward the top of the line in Figure 1-1 dissent more frequently than on collegial courts and may also write a greater number of reasons for the results, at the extreme with each judge writing a separate opinion.

  • [1] Rebecca Wood, Why Do High Court Judges Join? Joining Behaviour and Australia’s SeriatimTradition (PhD Dissertation, Michigan State University, 2008) [unpublished] at 37.
 
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