Publication Disparities at the Federal Courts of Appeals

This Article presents original results from a large-scale study of opinion publication at the federal courts of appeals. I test the relationship between demographic features of authoring judges on the one side and opinion publication status on the other in decisions issued from 2005 through 2017, and find that judge gender, race, and other attributes are systematically associated with opinion publica-tion. Holding other factors constant, men’s opinions are more likely to be published than women’s, and opinions by White judges more likely to be published than those by Black judges. I find further that the disparities in opinion publication seem to be responsible for disparities in case-based cita-tions: groups that publish at lower rates also get cited less, but only if we do not control for publication status. My study suggests that, in the critical domain of judicial opinion authorship, women and people of color may occupy a disadvantaged position.
Given the observational nature of my data, I refrain from making any strong causal claims about the results, but regardless of the causal mechanism, if we care about gender and racial equality in the judiciary and legal system, we should be concerned about publication disparities that track gender and race, since they are indicative of disparities in judge influence and visibility. Accordingly, I explain how the existing rules and norms around opinion publication leave considerable room for judicial dis-cretion and enable inconsistent publication decisions across judges, and I propose reforms that would mitigate the kind of disparities I uncover and would make for a more intelligible and better justified publication system.