UNIVERSITY PARK, Pa. — Collegiality can go a long way toward ensuring a more harmonious and productive workplace — even in places like the federal judiciary, according to Michael J. Nelson, professor and new head of Penn State’s Department of Political Science.
Such is the premise of “The Elevator Effect: Contact and Collegiality in the American Judiciary,” published by Oxford University Press in 2023 and co-written by Nelson, Morgan L.W. Hazelton and Rachael K. Hinkle. The book recently received the American Political Science Association (APSA) 2024 C. Herman Pritchett Award for the “best book on law and courts written by a political scientist and published the previous year.”
Nelson previously won the Pritchett Award for his 2021 book, “Judging Inequality: State Supreme Courts and the Inequality Crisis,” which he co-wrote with James L. Gibson and was published by Russell Sage Foundation Press. That book also received the APSA’s State Politics and Policy Section’s Virginia Gray Award.
“The Elevator Effect” examines how the interpersonal relationships forged among judges sitting on U.S. federal appellate courts inform their decisions. Essentially, Nelson and his co-authors argue, those relationships significantly diminish the role of ideology on judicial decision making.
The authors came up with the book’s title as a reference to a judge a friend had clerked for. The judge had written a particularly passionate dissenting opinion in a case.
“Right after the decision was announced, they got stuck in an elevator,” Nelson said with a laugh. “Everyone treats judges as if they’re acting independently, but anyone who’s ever been in a workplace knows you act differently when you’re around different people. In the case of federal judges, in most cases you’re with people who are going to be your colleagues until either you retire or they retire. If you know you’re going to have to see these people every day, you have a lot more incentive to get along.”
Nelson and his co-authors, who were officemates while attending graduate school at Washington University in St. Louis, analyzed all U.S. federal appeals court decisions on search and seizure cases from the 1950s to 2010. They also interviewed several dozen judges and clerks.
While judges often become experts on specific areas of jurisprudence, search and seizure cases tend to be much more “bread and butter” in nature, said Nelson, who recently contributed data analysis to The New York Times’ coverage of the recently completed Supreme Court term and is in the finishing stages of bringing the Supreme Court Database from its longtime home at Washington University in St. Louis to Penn State.
“Often with search and seizure cases, it comes down to, ‘Was it reasonable, was it not?’” Nelson said. “And when the judges agree, it could be for forward-looking reasons — such as, if I know I’m going to serve with someone for 20 years, I’m just going to shut up and sign on to their opinion and not make waves if I don’t think it’s that wrong. Compared to me being the person who complains every time I don’t absolutely agree. Or it can be an act of persuasion, which is based on past experiences. If I worked with you for 20 years, I’m going to have a good idea of the sort of argument you will find compelling or not compelling.
“So, for backward-looking reasons, we use the number of years people have worked together,” he continued. “And for forward-looking cases, we use the size of the circuit. How likely it is you’re going to have to serve with this person against you. We find that both work. As you serve together longer, the effect of ideology goes down; as you’re more likely to have to work with someone again soon, the effect also goes down.”
Geography was another factor in picking appellate courts to analyze, Nelson said. For instance, the U.S. Court of Appeals for the Third Circuit is headquartered in Philadelphia. However, it covers an expansive territory that includes Pennsylvania, New Jersey, Delaware and U.S. Virgin Islands. Some judges work in the same office and see each other every day, while others only come into direct contact during official court functions.
“What we found is that when you decide cases with people you work with every day, ideology doesn’t do a good job at all predicting whether you’re going to agree with them or not. But for the people you don’t see every day, ideology is the best predictor of how these people rule,” Nelson said.
In addition, Nelson and his collaborators looked at the language of opinions. While most dissenting opinions end with “I respectfully dissent,” some apply the curt “I dissent” to indicate a more pronounced display of disagreement.
“We show that you’re less likely to use the rude sign-off for people you see a lot,” Nelson said.
Nelson and his collaborators dedicated one chapter of the book to the U.S. Supreme Court. The data showed collegiality tended not to have much of an effect on the Court’s rulings, but when judges serve together longer, “they do tend to be more consensual,” said Nelson, citing the relationship between former Chief Justice William Rehnquist and former Associate Justice Ruth Bader Ginsburg as an example.
At the end of the book, Nelson and his co-authors suggest judges should make more time in their schedules for things like informal gatherings.
“Some courts have a practice where all the judges will come to somewhere like Cleveland for an oral argument, and then they’ll all go to dinner that night. It sounds kind of hokey, but it’s those sorts of opportunities to get to know each other that can be very beneficial to help to paper over some of the legal disagreements when you’re deciding cases,” Nelson said. “There are also things like judicial committees, which no one really likes to serve on, but we think they serve some sort of collegiality function by allowing the members to get to know each other outside of court functions in a way that can help build relationships that can help.
“You want to see your fellow judges as people,” he added. “And if you look at the broader literature on polarization, they’re talking more about the idea of seeing someone from the other party and instantly tagging them as the enemy. And when you have that psychological reaction to something, it’s hard to find common ground. So, anything you can do to get to know people outside that formal environment is good.”