Gauging the Impact of Obama’s Fourth Circuit Appointees

By Jonathan Biran

During President Obama’s first term, the U.S. Senate confirmed six of his nominees to the 15-seat Fourth Circuit. Conventional wisdom among Fourth Circuit practitioners seems to be that the Obama appointees (Judges Davis, Keenan, Wynn, Diaz, Floyd, and Thacker) have changed the Court significantly.  Among other manifestations of this change in composition of the Court, I’ve heard some say that the Court appears to be more fractious now than in the past.  I wanted to see if there is any data to back up that perception, so I looked at the Court’s published opinions from 2008 through the first six months of 2013 to compare the percentage of unanimous opinions versus those with concurring and dissenting opinions.  I didn’t consider unpublished opinions in my review – first, because there are so many routine unpublished opinions, and second because they’re not precedential.  My sense is that in some cases, a third judge will join an unpublished per curiam opinion, whereas if the other two judges wanted to publish the opinion, the third judge might feel it necessary to write a concurring opinion.  For these reasons, I don’t think unpublished opinions are the best barometer of the Court’s fractiousness.  But see, e.g., Minn. Lawyers Mut. Ins. Co. v. Baylor & Jackson, PLLC, No. 12-1581 (4th Cir. 2013) (Thacker, J. dissenting)

I also only considered panel opinions, not en banc opinions.  There have only been a handful of en banc opinions issued between January 2008 – June 2013, and you expect the Court to be at least somewhat divided in en banc cases anyway.

Here’s what I found:

In cases noted above as having a dissenting opinion, it was sometimes also the case that one or both of the judges in the majority wrote a concurring opinion in that case, but I didn’t make a separate note of that.  The cases listed above as having a concurring opinion are only those where the vote was 3-0, but at least one of the judges wrote a separate concurring opinion.

So, what do we glean from this data?  Except for 2010, when the Court was most divided (and before the Obama appointees had all come onto the Court), the percentage of 3-0 unanimous opinions has stayed between 76 and 82 percent.  Of the roughly 20 percent of cases where a judge wrote a separate opinion, the percentage of dissenting versus concurring opinions has also remained quite stable, with the exception of 2009 (11% dissenting) and 2010 (22% dissenting).

In terms of which judges have been dissenting, it is difficult to discern any meaningful difference.  While Judge Gregory – considered one of the more liberal judges on the Court – wrote only five dissenting opinions in published cases in 2012, compared with eight in 2008, Judge Niemeyer, who is considered one of the more conservative members of the Court, also wrote fewer dissenting opinions in published cases in 2012 (four) than he did in 2008 (six).  Some judges seem to like to dissent more than others.  Judges Niemeyer and Gregory were among the most frequent dissenters during the five and one-half year period I analyzed, while I found only one dissenting opinion in a published panel decision by Judge Motz during the same period (she did write several concurring opinions, however).

I didn’t examine criminal versus civil cases in my review, but rather looked at all published opinions as a group.  It’s possible that there may be some variation between civil and criminal cases; criminal appellate lawyers in the Fourth Circuit certainly have noticed a pro-defendant shift on the Court, and my sense without reviewing the data is that Judges Wilkinson, Niemeyer, and Agee have written more dissenting opinions in criminal cases in the last couple of years than they did in years past.  But their increase in dissenting opinions may be made up for by fewer dissenting opinions in criminal cases by Judges Gregory.

One thing I didn’t analyze – and it would necessarily be a subjective analysis – is whether there is any discernible change in the tone of the opinions.  That is, do the Fourth Circuit judges these days more sharply criticize opinions going the other way?  I’ve seen some sharply worded opinions in the last couple of years – see the concluding paragraphs of Judge King’s majority opinion and Judge Wilkinson’s dissenting opinion in Elmore v. Ozmint, 661 F.3d 783 (4th Cir. 2011)– but they seem to me to be the exception, not the rule.

Regardless, it would appear that rumors of the Fourth Circuit’s fractiousness have been exaggerated.

One other point: you’ll note that the number of published opinions issued each year has increased significantly since 2008.  This increase is probably reflective, at least in part, of an overall increase in the Court’s workload — i.e., the percentage of published to unpublished decisions may not have changed much if the overall number of appeals that have been decided on the merits has risen concomitantly.  Data from the Administrative Office of the Courts show that the number of cases terminated on the merits went up from 2,687 in the 12 months ending on March 31, 2008, to 3,664 in the 12 months ending on March 31, 2012.  The increase in the number of published opinions may also have something to do with the fact that the Court is now up to its full complement of judges after many  years of getting by with one or more vacant positions.  See Jay O’Keeffe, Behind the Scenes at the Fourth Circuit: How the Court Decides Whether to Award Oral Argument (Sept. 4, 2013) (“The court is putting more cases on the calendar to fill gaps in Fourth-Circuit jurisprudence that result from the years during which the court was short-staffed.”).

Whatever the reason, it is clear that the Fourth Circuit is issuing more precedential opinions now than it did before the Obama appointees joined the Court.

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