SACRAMENTO — A review of judicial behavior in regards to the
habits of dissent voting between a pro tempore and a permanent judge
reveals a slight deviation, according to a lawyer and legal analyst.
Kirk Jenkins, an attorney and partner at Chicago’s Sedgwick
Law, recently looked at what he referred to as the possibility of
“dissent aversion” between California’s pro tempore judges
elevated to a higher court to temporarily cover a vacancy and
permanent judges to that court.
Jenkins, who spoke with the Northern California Record,
at eight years of votes cast by pro temp and permanent judges
covering civil cases.
“A great deal of the academic literature about appellate
decision making tries to measure group effects — the impact on
voting of the ideology or background of the other justices someone is
sitting with,” he said.
According to Jenkins, “dissent aversion” is the habit of not
voting against the majority even though such an act may run contrary
to the principles, legal ideals and conclusions of the judge. The
reason for this may have something to do with what could be phrased
“familiarity breeds conformity.”
“Various reasons [for dissent aversion] have been suggested —
most prominently, that publishing dissents contributes to tension
with one's colleagues,” Jenkins said.
Having served for long periods of time together and developing
close bonds of camaraderie, it is theorized that judges may look more
to not rocking the boat than to standing on principle. Following that
line of argument, Jenkins conjectured that, if true, pro tempore
judges would display a greater degree of disparity with the majority.
Jenkins conducted his study because he felt that “looking at pro
tems seem[ed] like an interesting opportunity to contrast a justice
joining the court for only one case to the patterns among the
His findings revealed
that pro tempore judges voted, on average, 90 percent of the time
with the majority, while the permanent judges sided with the majority
89.44 percent of the time — a slight deviation, but contrary to the
conventional wisdom propounded previously.
Dissent aversion has manifested itself in different forms in the
past within California, including the behavior of former state Chief
Justice Rose Bird, who presided on the high court from 1977 to 1987.
James Brent of San Jose State University published a paper
in 2006 discussing judicial manipulation as allegedly practiced by
Bird and her subsequent replacements.
Citing the state’s “largely discretionary docket” involving
distinct ideological and policy issues that often produced “high
levels of dissent,” Brent wrote that “a chief could be tempted to
use this power to achieve policy goals.”
The temptation of this power to appoint judges favorable to the
will of the chief justice (i.e. stacking the court) and thus shape
policy was reportedly too much for Bird to ignore, Brent's paper
In one such case, Assembly v. Deukmejian from 1980, the state's high
court “upheld a Democratic legislative redistricting plan.” Bird
was joined in the 4-3 majority vote by a pro tempore justice. During
her time on the high court, Bird broke from the normal practice of
picking appellate judges as pro tempore justices by bringing up
trial-court judges to those positions. That led to charges of manipulation, the paper said.