Allison Orr Larsen & Neal Devins

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.

Introduction

The arena for judicial appointment battles today is national: the nominees are largely picked from lists created by national organizations, the tradition of deferring to home-state senators is vanishing, and the people selected as federal judges are increasingly those with national connections not regional ones.¹ 1.For observations along these lines, see Lawrence Baum & Neal Devins, Federalist Court, Slate (Jan. 31, 2017, 10:12 AM), https://slate.com/news-and-politics/2017/01/how-the-federa​list-society-became-the-de-facto-selector-of-republican-supreme-court-justices.html [https://​perma.cc/JH3R-4UD3]; Carl Hulse, After Success in Seating Federal Judges, Biden Hits Resistance, N.Y. Times (Dec. 5, 2021), https://www.nytimes.com/2021/12/05/us/politi​cs/biden-judges-senate-confirmation.html [https://perma.cc/2JAW-VLRD] (noting the role of “liberal interest groups” in influencing Biden’s judicial picks and demise of the blue slip custom of deferring to home-state senators when confirming federal appellate judges); Adam Liptak, White House Announces Slate of 11 Judicial Nominees, N.Y. Times (June 7, 2017), https://www.nytimes.com/2017/06/07/us/politics/trump-judicial-nominations.html [https://pe​rma.cc/3M5R-HATV] (“Many of the nominees are well known in the conservative legal movement.”); see also infraPart III (delineating the rise of centralized national policies in the appointment of judges).Show More Ironically, though, the judges who go on to the U.S. Courts of Appeals inherit surprisingly local jobs. Although typically lumped together, the thirteen federal appellate courts do not behave as one; they have developed distinct local rules and customs that tend to endure over time.

These circuit-specific practices (some written down, others not) exist on multiple dimensions. Some relate to managing the docket: the frequency of oral argument, the rate of published opinions, and the regularity of en banc sittings.² 2.Other scholars—most notably Marin Levy and Stephanie Lindquist—have done a lot of valuable work describing some of these differences in case management. See, e.g., Marin K. Levy & Jon O. Newman, The Office of Chief Circuit Judge, 169 U. Pa. L. Rev. 2425, 2441–44 (2021); Marin K. Levy, The Mechanics of Federal Appeals: Uniformity and Case Management in the Circuit Courts, 61 Duke L.J. 315, 325 (2011); Stefanie A. Lindquist, Bureaucratization and Balkanization: The Origins and Effects of Decision-making Norms in the Federal Appellate Courts, 41 U. Rich. L. Rev. 659, 662–63 (2007); see also Virginia A. Hettinger, Stefanie A. Lindquist & Wendy L. Martinek, Judging on a Collegial Court 39–41 (2006) (describing institutional influences on rates of dissent among appellate judges, including informal norms and overall workload). We build on their efforts by updating and adding detail to the variation and then making a new argument for the increased importance of these local practices today.Show More Other unique customs are not formalized. Judges on the U.S. Court of Appeals for the Fourth Circuit, for example, descend from the bench after every argument and shake the hands of the lawyers. Ninth Circuit judges and Fifth Circuit judges share bench memos written by pools of law clerks. The Seventh Circuit circulates some panel opinions among all members of their court before publication in a “paper en banc” and accommodates suggestions from judges who are not on the panel. The Sixth Circuit has a “joviality committee” responsible for, among other things, arranging river boat cruises. And the Third Circuit even bears a self-imposed nickname—“the Mighty Third”—which one can imagine is stitched on the back of their judicial softball jerseys.³ 3.All of these observations come from our interviews, the notes of which have been inspected by the journal editors. As in other qualitative studies of judicial behavior, we assured each judge we interviewed that we would not quote them by name without explicit permission, and that is why our interviews are described anonymously. See Levy, supra note 2, at 326–27 (describing the same practice for her study).Show More

These local norms and traditions are sticky over time and form what we refer to here as “circuit personalities”—customs and rules that are not uniform nationally but loom large in framing the identity and daily life of a federal appellate judge. Our goal in this Article is to describe these unique circuit personality traits and then to argue that they are critically important to buttressing collegiality and rule-of-law norms in this political moment of historic partisan polarization.

We conducted interviews with eighteen federal appellate judges—at least one sitting on each circuit and at least one appointed by every President from Joe Biden to Gerald Ford. Those interviews taught us that the circuits operate very differently from one another, and that these organically grown rules and traditions are highly valued by judges, even judges that come from widely different backgrounds and with diverging ideologies.

To understand the significance of circuit personalities, it is important to remember that a federal appeals judge is unique in our judicial system.⁴ 4.Harry T. Edwards, Collegial Decision-Making in the US Courts of Appeals, in Collective Judging in Comparative Perspective 57, 61 (Birke Häcker & Wolfgang Ernst eds., 2020) (“The collegial operations and internal decision-making processes of the Supreme Court and the Courts of Appeals are strikingly different.”).Show More Unlike district court judges or Supreme Court Justices (the latter of whom have a growing habit of separate writings and reaching almost celebrity status for their individual views),⁵ 5.Richard L. Hasen, Celebrity Justice: Supreme Court Edition, 19 Green Bag 2d 157, 158 (2016); Suzanna Sherry, Our Kardashian Court (and How to Fix It), 106 Iowa L. Rev. 181, 182 (2020) (“Television appearances, books, movies, stump speeches, and separate opinions aimed at the Justices’ polarized fan bases have created cults of personality around individual Justices.”).Show More federal appellate judges are never lone actors and rarely speak only for themselves. As Judge Wood of the Seventh Circuit puts it, unlike the district court judge, who is “solo in the courtroom, mistress of all she surveys,” a court of appeals judge “cannot hope to get anything done without persuading at least one fellow judge to agree with her.”⁶ 6.Diane P. Wood, When to Hold, When to Fold, and When to Reshuffle: The Art of Decisionmaking on a Multi-Member Court, 100 Calif. L. Rev. 1445, 1446 (2012).Show More

Indeed, the design structure of the federal courts of appeals requires decisions in randomly assigned panels of three, and this means appellate judges are supposed to be faceless and anonymous.⁷ 7.This design of three-judge-panel decision making on the Courts of Appeals is set forth in 28 U.S.C. § 46(b), (c). By statute, cases are decided on appeal by panels of three judges, unless a majority of the judges in regular active service vote to hear the case all together or “en banc.” Id. § 46(c). It is typically understood that judges are randomly assigned to panels; however, this is not strictly required by the statute and recent studies have questioned whether panels are truly randomly assigned in every circuit. See Adam S. Chilton & Marin K. Levy, Challenging the Randomness of Panel Assignment in the Federal Courts of Appeals, 101 Cornell L. Rev.1, 3–4, 9 (2015) (finding evidence of non-randomness in panel selection).Show More For this system to work, the judges need to buy into a particular model of judging: that any panel of three can deliver a legitimate decision for the circuit as a whole. Correspondingly, en banc reconsiderations are disfavored.⁸ 8.Neal Devins & Allison Orr Larsen, Weaponizing En Banc, 96 N.Y.U. L. Rev. 1373, 1376 (2021).Show More The emphasis is on the court and not the individual, and collegiality among the decision makers is prized.⁹ 9.As Judge Harris of the Fourth Circuit explains (in an article celebrating Judge Edwards of the D.C. Circuit), “Getting it right, it turns out, is not only about the work ethic and the analytic rigor. For Judge Edwards, it also is about the engagement with his colleagues, a collective process in which judges reason their way together to the right answer.” Pamela Harris, A Model of Collegiality: Judge Harry T. Edwards, 105 Judicature 76, 77–78 (2021), https://judicature.duke.edu/articles/a-model-of-collegiality-judge-harry-t-edwards [https://per​ma.cc/WEV7-EHD4].Show More

Circuit personalities are integral to this model of judicial behavior. Much like entrenched family traditions and social gatherings can help bond a bickering family, so too do local norms and rules link circuit judges and help them work together. Of course, the relevant rules and traditions can change over time—and we identify instances where specific circuits affirmatively sought to change their personality traits to improve their decision making. Important to our argument, however, is the fact that (like family traditions) the rules and norms come from within the circuit and not from a national centralized source. In fact, the very process of choosing circuit rules and traditions brings appeals judges together in ways that reinforce their bonds to each other and to the court itself. Likewise, the power of circuit judges to embrace new norms and traditions in order to facilitate orderly, collegial decision making makes clear that circuit personalities can simultaneously advance rule-of-law values and mitigate partisan fighting.

Part of our normative claim is thus quite intuitive: human contact and communal traditions are critical ingredients in healthy collective judicial decision making. Decisions are more efficiently handed down, consensus is more likely, and fractured discord is prevented when the judges feel a connection to one another.¹⁰ 10.We take these values as a given for healthy judicial decision making. It is of course possible to believe good judging rejects consensus-building and embraces sharp disagreements. Those readers should still find our descriptive findings of interest—even if they are not persuaded by the rest of our argument.Show More More than that, the desire to be liked and respected by your colleagues is a basic psychological motivation.¹¹ 11.See Lawrence Baum, Judges and Their Audiences 25 (2006).Show More Indeed, life under the recent pandemic has truly brought this reality home. Several of the judges we spoke to noted that without the regular face time and social gatherings with their colleagues (cancelled due to COVID) they have noticed less consensus on cases and sharper tones in dissents.¹² 12.See Interview with 4th Cir. Judge (Feb. 8, 2021) (notes on file with editors); Interview with 11th Cir. Judge (Apr. 1, 2021) (notes on file with editors); see also Frank Green, Judges and Observers of Powerful Court of Appeals Express Concern on Partisanship, Rich. Times-Dispatch (Sept. 3, 2021), https://richmond.com/news/state-and-regional/judges-and-obser​vers-of-powerful-federal-appeals-court-express-concern-on-partisanship/article_9981c9ed-c​39c-5f46-8df1-4246cf4ad790.html [https://perma.cc/4G6B-RRWV] (noting the sharp tone between Judge Wynn and Judge Wilkinson on dissents from denial in the Fourth Circuit). There of course could be other factors aggravating this discord besides a lack of personal contact, but the increased isolation certainly does not help foster collegiality.Show More The present moment, therefore, affords a unique opportunity to identify and revalue traditions that were suspended during the pandemic.

Our claim goes beyond improving the daily lives of federal judges, however. Because federal appellate judges are increasingly identified with national groups as opposed to state actors, and since judicial selectors increasingly prioritize demonstrated allegiance to national movements with ideological ties, we are facing something new and worrisome: a model of judicial decision making that falls prey to the “my team / your team” partisan impulses that plague the entire country.¹³ 13.See supra note 1; see also John M. Burman, Should Federal Judges Belong to or Openly Support Organizations that Promote a Particular Ideology?, 13 Wyo. L. Rev. 189, 195 (2013) (“One issue that has arisen is that with increasing frequency, judges are selected or not selected, at least in part, because they belong to or openly support certain groups—groups that openly profess adherence to certain ideological goals—and continue to belong to or openly support those groups after assuming the bench. . . . Whatever the merits of either society, the mere fact that a federal judge belongs to or openly supports one society or the other is tantamount to wearing a banner that says ‘conservative’ or ‘liberal.’”).Show More Given this new reality, local circuit personalities are more important now than ever before because they push back on troubling signs of partisanship in judicial behavior.

And the warning signs of judicial partisanship are growing. The New York Times reported in 2020 that judges appointed by President Trump were less likely to concur with their Democratic-appointed counterparts than were other Republican-appointed judges.¹⁴ 14.Rebecca R. Ruiz, Robert Gebeloff, Steve Eder & Ben Protess, A Conservative Agenda Unleashed on the Federal Courts, N.Y. Times (Mar. 16, 2020), https://www.nyti​mes.com/2020/03/14/us/trump-appeals-court-judges.html [https://perma.cc/CB4M-CDF5].Show More Zalman Rothschild documented a partisan correlation in recent judicial decisions on Free Exercise challenges during COVID.¹⁵ 15.Zalman Rothschild, Free Exercise Partisanship, 107 Cornell L. Rev. (forthcoming 2022) (manuscript at 12) (“In the last five years, judicial partisanship in free exercise cases has crescendoed. And when the pandemic struck, resulting in widespread lockdowns of religious houses of worship, the unprecedented number of constitutional free exercise cases brought in such a condensed span of time forced that partisanship into sharp relief.”).Show More And our own study about en banc decision making in the Courts of Appeals indicates a post-2018 spike in partisan behavior in en banc decisions—a spike that bucks a sixty-year trend in the opposite direction.¹⁶ 16.Devins & Larsen, supra note 8, at 1380. For additional discussion of our en banc study, see Adam Liptak, On Federal Appeals Courts, a Spike in Partisanship, N.Y. Times (Feb. 22, 2021), https://nytimes.com/2021/02/22/us/politics/courts-partisanship.html [https://perma.cc​/FQ6R-P744]. For a discussion of how Trump appointees to the Ninth Circuit are increasingly dissenting from denials of petitions for en banc rehearings, see Andrew Wallender & Madison Alder, Ninth Circuit Conservatives Use Muscle to Signal Supreme Court, Bloomberg L.: US L. Week (Dec. 8, 2021, 4:45 AM), https://news.bloomberglaw.com/us-law-week/ninth-circuit-conservatives-use-muscle-to-signal-supreme-court [https://perma.cc/48YS-EL4V].Show More

No doubt, federal appeals judges have ideological commitments and partisan divisions are thus sometimes inevitable. We do not argue that circuit personalities are a panacea to cure all divisions on the bench; that train has left the station. Our target, instead, is the integrity of the decision making by federal courts of appeals. Federal appeals judges should try to preserve the consensus-driven decision-making model that is the hallmark of their courts. Correspondingly, they should try to steer clear of gratuitous separate opinions, partisan en banc review, and other attention-seeking behavior.¹⁷ 17.By prioritizing that which is politically salient, moreover, appeals judges effectively limit the right to appeal. En banc and separate opinions are time-consuming to write, and, consequently, attention-seeking appeals judges will have less time to hear argument and write precedential published opinions.Show More Partisan divisions may be inevitable, but they need not become the norm.

The best way forward, we argue, is for federal appeals judges to double down on the local ties that bind. By investing in circuit personalities (what unites them), these judges avoid collateral costs that come with acting as “partisan warriors” on a national stage.¹⁸ 18.We borrow this phrase from Judge Wilkinson on the Fourth Circuit in connection with a warning. See In re Trump, 958 F.3d 274, 292 (4th Cir. 2020) (Wilkinson, J., dissenting).Show More As we describe below, with partisan fighting comes more dissents, less consensus, more screened-out cases, less deliberation, more divisive headlines, and less anonymous collective reasoning. The stakes, therefore, are enormously high: at risk is the very model of appellate decision making we know.

In this Article, we will both highlight the pervasiveness of nationalization and explain why it is that membership in a collegial circuit mitigates the partisan pressure felt by federal judges in today’s polarized environment. Local norms and traditions inculcate a loyalty to a smaller group—separate from a national allegiance felt by the judges to, for example, the Federalist Society or the American Constitution Society. These unique traditions foster bipartisan relationships and a joint commitment to the rule of law. Circuit personalities, in other words, are an important counterweight to growing partisanship and nationalization. This makes circuit personalities critically important to study and imperative to secure.

This Article proceeds in three parts. Part I describes what we learned from our judicial interviews and other research about the unique rules and customs that vary from circuit to circuit. Mapping out these circuit personalities is useful to both scholars of judicial decision making and members of the judiciary themselves—many of whom, we learned, know little about, and are curious to learn how, their sister circuits operate. Part II explains why these differences are uniquely important to the job of a federal appellate judge. Part III explains the centralizing partisan forces that are threatening the more localized model of federal appellate judging. This Article then concludes by explaining why circuit personalities are important mitigating forces against growing national partisanship and identifying some traits that are particularly desirable.

1. For observations along these lines, see Lawrence Baum & Neal Devins, Federalist Court, Slate (Jan. 31, 2017, 10:12 AM), https://slate.com/news-and-politics/2017/01/how-the-federa​list-society-became-the-de-facto-selector-of-republican-supreme-court-justices.html [https://​perma.cc/JH3R-4UD3]; Carl Hulse, After Success in Seating Federal Judges, Biden Hits Resistance, N.Y. Times (Dec. 5, 2021), https://www.nytimes.com/2021/12/05/us/politi​cs/biden-judges-senate-confirmation.html [https://perma.cc/2JAW-VLRD] (noting the role of “liberal interest groups” in influencing Biden’s judicial picks and demise of the blue slip custom of deferring to home-state senators when confirming federal appellate judges); Adam Liptak, White House Announces Slate of 11 Judicial Nominees,
   

   N

   .Y. Times (June 7, 2017), https://www.nytimes.com/2017/06/07/us/politics/trump-judicial-nominations.html [https://pe​rma.cc/3M5R-HATV] (“Many of the nominees are well known in the conservative legal movement.”); see also infra Part III (delineating the rise of centralized national policies in the appointment of judges). ↑

2. Other scholars—most notably Marin Levy and Stephanie Lindquist—have done a lot of valuable work describing some of these differences in case management. See, e.g., Marin K. Levy & Jon O. Newman, The Office of Chief Circuit Judge, 169 U. Pa. L. Rev. 2425, 2441–44 (2021); Marin K. Levy, The Mechanics of Federal Appeals: Uniformity and Case Management in the Circuit Courts, 61 Duke L.J. 315, 325 (2011); Stefanie A. Lindquist, Bureaucratization and Balkanization: The Origins and Effects of Decision-making Norms in the Federal Appellate Courts, 41 U. Rich. L. Rev. 659, 662–63 (2007); see also Virginia A. Hettinger, Stefanie A. Lindquist & Wendy L. Martinek, Judging on a Collegial Court 39–41 (2006) (describing institutional influences on rates of dissent among appellate judges, including informal norms and overall workload). We build on their efforts by updating and adding detail to the variation and then making a new argument for the increased importance of these local practices today. ↑
3. All of these observations come from our interviews, the notes of which have been inspected by the journal editors. As in other qualitative studies of judicial behavior, we assured each judge we interviewed that we would not quote them by name without explicit permission, and that is why our interviews are described anonymously. See Levy, supra note 2, at 326–27 (describing the same practice for her study). ↑
4. Harry T. Edwards, Collegial Decision-Making in the US Courts of Appeals, in Collective Judging in Comparative Perspective 57, 61 (Birke Häcker & Wolfgang Ernst eds., 2020) (“The collegial operations and internal decision-making processes of the Supreme Court and the Courts of Appeals are strikingly different.”). ↑
5. Richard L. Hasen, Celebrity Justice: Supreme Court Edition, 19 Green Bag 2d 157, 158 (2016); Suzanna Sherry, Our Kardashian Court (and How to Fix It), 106 Iowa L. Rev. 181, 182 (2020) (“Television appearances, books, movies, stump speeches, and separate opinions aimed at the Justices’ polarized fan bases have created cults of personality around individual Justices.”). ↑
6. Diane P. Wood, When to Hold, When to Fold, and When to Reshuffle: The Art of Decisionmaking on a Multi-Member Court, 100 Calif. L. Rev. 1445, 1446 (2012). ↑
7. This design of three-judge-panel decision making on the Courts of Appeals is set forth in 28 U.S.C. § 46(b), (c). By statute, cases are decided on appeal by panels of three judges, unless a majority of the judges in regular active service vote to hear the case all together or “en banc.” Id. § 46(c). It is typically understood that judges are randomly assigned to panels; however, this is not strictly required by the statute and recent studies have questioned whether panels are truly randomly assigned in every circuit. See Adam S. Chilton & Marin K. Levy, Challenging the Randomness of Panel Assignment in the Federal Courts of Appeals, 101 Cornell L. Rev.
   

   1,

   3–4, 9 (2015) (finding evidence of non-randomness in panel selection). ↑

8. Neal Devins & Allison Orr Larsen, Weaponizing En Banc, 96 N.Y.U. L. Rev. 1373, 1376 (2021). ↑
9. As Judge Harris of the Fourth Circuit explains (in an article celebrating Judge Edwards of the D.C. Circuit), “Getting it right, it turns out, is not only about the work ethic and the analytic rigor. For Judge Edwards, it also is about the engagement with his colleagues, a collective process in which judges reason their way together to the right answer.” Pamela Harris, A Model of Collegiality: Judge Harry T. Edwards, 105 Judicature 76, 77–78 (2021), https://judicature.duke.edu/articles/a-model-of-collegiality-judge-harry-t-edwards [https://per​ma.cc/WEV7-EHD4]. ↑
10. We take these values as a given for healthy judicial decision making. It is of course possible to believe good judging rejects consensus-building and embraces sharp disagreements. Those readers should still find our descriptive findings of interest—even if they are not persuaded by the rest of our argument. ↑
11. See Lawrence Baum, Judges and Their Audiences 25 (2006). ↑
12. See Interview with 4th Cir. Judge (Feb. 8, 2021) (notes on file with editors); Interview with 11th Cir. Judge (Apr. 1, 2021) (notes on file with editors); see also Frank Green, Judges and Observers of Powerful Court of Appeals Express Concern on Partisanship, Rich. Times-Dispatch (Sept. 3, 2021), https://richmond.com/news/state-and-regional/judges-and-obser​vers-of-powerful-federal-appeals-court-express-concern-on-partisanship/article_9981c9ed-c​39c-5f46-8df1-4246cf4ad790.html [https://perma.cc/4G6B-RRWV] (noting the sharp tone between Judge Wynn and Judge Wilkinson on dissents from denial in the Fourth Circuit). There of course could be other factors aggravating this discord besides a lack of personal contact, but the increased isolation certainly does not help foster collegiality. ↑
13. See supra note 1; see also John M. Burman, Should Federal Judges Belong to or Openly Support Organizations that Promote a Particular Ideology?, 13 Wyo. L. Rev. 189, 195 (2013) (“One issue that has arisen is that with increasing frequency, judges are selected or not selected, at least in part, because they belong to or openly support certain groups—groups that openly profess adherence to certain ideological goals—and continue to belong to or openly support those groups after assuming the bench. . . . Whatever the merits of either society, the mere fact that a federal judge belongs to or openly supports one society or the other is tantamount to wearing a banner that says ‘conservative’ or ‘liberal.’”). ↑
14. Rebecca R. Ruiz, Robert Gebeloff, Steve Eder & Ben Protess, A Conservative Agenda Unleashed on the Federal Courts, N.Y. Times (Mar. 16, 2020), https://www.nyti​mes.com/2020/03/14/us/trump-appeals-court-judges.html [https://perma.cc/CB4M-CDF5]. ↑
15. Zalman Rothschild, Free Exercise Partisanship, 107 Cornell L. Rev. (forthcoming 2022) (manuscript at 12) (“In the last five years, judicial partisanship in free exercise cases has crescendoed. And when the pandemic struck, resulting in widespread lockdowns of religious houses of worship, the unprecedented number of constitutional free exercise cases brought in such a condensed span of time forced that partisanship into sharp relief.”). ↑
16. Devins & Larsen, supra note 8, at 1380. For additional discussion of our en banc study, see Adam Liptak, On Federal Appeals Courts, a Spike in Partisanship, N.Y. Times (Feb. 22, 2021), https://nytimes.com/2021/02/22/us/politics/courts-partisanship.html [https://perma.cc​/FQ6R-P744]. For a discussion of how Trump appointees to the Ninth Circuit are increasingly dissenting from denials of petitions for en banc rehearings, see Andrew Wallender & Madison Alder, Ninth Circuit Conservatives Use Muscle to Signal Supreme Court, Bloomberg L.: US L. Week (Dec. 8, 2021, 4:45 AM), https://news.bloomberglaw.com/us-law-week/ninth-circuit-conservatives-use-muscle-to-signal-supreme-court [https://perma.cc/48YS-EL4V]. ↑
17. By prioritizing that which is politically salient, moreover, appeals judges effectively limit the right to appeal. En banc and separate opinions are time-consuming to write, and, consequently, attention-seeking appeals judges will have less time to hear argument and write precedential published opinions. ↑

18. We borrow this phrase from Judge Wilkinson on the Fourth Circuit in connection with a warning. See In re Trump, 958 F.3d 274, 292 (4th Cir. 2020) (Wilkinson, J., dissenting). ↑

The Supreme Court receives a record number of amicus curiae briefs and cites to them with increasing regularity. Amicus briefs have also become influential in determining which cases the Court will hear. It thus becomes important to ask: Where do these briefs come from? The traditional tale describes amicus briefs as the product of interest-group lobbying. But that story is incomplete and outdated. Today, skilled and specialized advocates of the Supreme Court Bar strategize about what issues the Court should hear and from whom they should hear them. They then “wrangle” the necessary amici and “whisper” to coordinate the message. The result is orchestrated and intentional—the product of what we call “the amicus machine.”

This Article has two goals: The first is to offer a new description of the origin of many Supreme Court amicus briefs, explaining how it is that the Justices and the advocates benefit from this choreographed amicus process. Second, we make the perhaps surprising claim that the amicus machine is normatively desirable. Others have warned about the influence of the powerful lawyers of the Supreme Court Bar generally. While acknowledging these risks, we argue that—when it comes to amicus briefs—the benefits of specialization outweigh the costs.