The Interplay of Ideological Diversity, Dissents, and Discretionary Review in the Judicial Hierarchy: Evidence from Death Penalty Cases

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We use an original dataset of death penalty decisions on the Courts of Appeals to evaluate how the institutions of multimember appellate courts, dissent, and discretionary higher court review interact to increase legal consistency in the federal judicial hierarchy. First, beginning with three-judge panels, we show the existence of ideological diversity on a panel--and the potential for dissent---plays a significant role in judicial decision making. Second, because of the relationship between panel composition and panel outcomes, considering only the incidence of dissents dramatically underestimates the influence of the institution of dissent--judges dissent much less frequently than they would in the absence of this relationship. Third, this rarity of dissent means they are informative: when judges do dissent, they influence en banc review in a manner consistent with the preferences of full circuits. Taken together, these results have important implications for assessing legal consistency in a vast and diverse judicial hierarchy.