Vanderbilt Law Review

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Grutter v. Bollinger is familiar to American lawyers, academics, and law students as the Supreme Court decision allowing the consideration of race in law school admissions.1 Grutter's procedural history is nearly as noteworthy as its substantive holding. The University of Michigan Law School, after losing in federal district court, appealed to the U.S. Court of Appeals for the Sixth Circuit. Three Democratic appointees were assigned to the panel: Judges Karen Nelson Moore and Martha Craig Daughtrey, who had heard an earlier interlocutory appeal, and Chief Judge Boyce Martin, who replaced the designated district judge from the earlier panel. The white applicant reqiiested that the entire court, rather than a panel, hear the case. The Sixth Circuit granted the en banc petition. A closely divided en banc court reversed the district court in an opinion authored by Martin.

Normally, that is all we would know about the process by which the Sixth Circuit decided the case. But something highly unusual happened. Judge Danny Boggs included with his dissenting opinion a five-page procedural appendix detailing intracourt machinations and accusing the Chief Judge of manipulating procedures to affect the outcome. Boggs alleged that Martin violated circuit rules by assigning himself, rather than a randomly selected judge, to the three-judge panel. This assertion alone does not seem very significant-the case was decided, after all, by the en banc court. Boggs's more pointed accusation was that Martin engineered the en banc voting process to ensure a court balanced in favor of the law school. When the white student petitioned for an en banc hearing, eleven active judges sat on the Sixth Circuit; two of those judges had expressed their intent to take senior status.10 Martin circulated the petition after both judges had taken senior status, making them ineligible to participate. Judge Alice Batchelder responded by writing an internal memo to her colleagues contending that Martin delayed the vote on the white student's request for a hearing en banc until judges opposed to affirmative action took senior status. Boggs's dissent made public those accusations, a fact that one colleague called "shameful," and another "embarrassing and incomprehensible."

Accusations like those made in Grutter are consistent with the attitudinal theory of judicial decisionmaking. Attitudinal theory proffers that judges are political actors who make decisions that will maximize their policy preferences. Developed primarily by political scientists, this approach has gained increasing currency in legal scholarship. If the theory is an accurate account of any judicial action on the courts of appeals, we would expect, at a minimum, to see evidence in the behavior of chief judges, who have more opportunities than other circuit judges to achieve policy goals. Chief judges may behave attitudinally in exercising their formal powers as well as their informal authority and influence.

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