An article by my colleague Judge Edwards uses a series of computer runs from the court's 1983 term to make out a statistical case that our members mostly agree with each other and do not fall into predictable "conservative," “liberal," or even "moderate," voting blocs; labels that the press so dearly loves to pin on us. I agree that our votes in a large number of cases, particularly administrative law cases, do not so easily typecast us. I do, however, think that in the high visibility cases, involving controversial social or "moral" issues, our differences in judicial philosophy, on the proper role of the courts in a democratic society, do emerge front and center. I also believe that some judges have definite "agendas" for changing the law in certain areas, such as restricting access to the federal courts, and that they diligently pursue these agendas at every opportunity. It is clear that important aspects of our circuit jurisprudence are changing with our changing membership. How this happens on a day-to-day and case-by-case basis in a circuit court of appeal, and how active or restrained a role an appellate judge legitimately plays in accelerating or resisting change, is the real subject of my remarks tonight. In preparation, I have reviewed our cases for the 1984-85 "term" and will use that time period for the most part to make my points.


The Thirty-Fifth Cleveland-Marshall Fund Lecture