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March 13, 2017 Articles

Going Solo: When Appellate Judges Get to Decide on Their Own

Having to make every decision by committee might get tiring, but appellate judges do get an occasional taste of solo power.

By Anna-Rose Mathieson and Ben Feuer

Trial court judges get to make their own decisions. Not so appellate judges. Three-judge panels sit at the intermediate appellate level for most federal and state courts, which means at least two judges must agree for any decision to become precedent. Even more crowd the bench at higher levels—seven on the high courts in California, Florida, and New York; nine on the U.S. Supreme Court and the Texas high courts; eleven on most Ninth Circuit en banc panels; and fifteen or more judges on Fifth Circuit en banc panels.

Having to make every decision by committee might get tiring, but appellate judges do get an occasional taste of solo power. The decisions that can be made by a single judge vary from court to court, but, as a general rule, the more ministerial and procedural the issue, the more likely an individual judge will be authorized to decide it.

Decision Making at the Supreme Court Level

The broadest powers—at least in theory—are given to individual U.S. Supreme Court justices. A justice acting alone can grant or deny a stay of a lower court order, issue a temporary injunction, or order a prisoner released on bail. For example, Chief Justice Roberts ordered a stay of a lower court order releasing a criminal defendant until the Court could determine whether to grant certiorari. Maryland v. King, 133 S. Ct. 1, 2 (2012). And Justice Sotomayor denied a company’s request for an injunction freeing it from the contraception coverage requirement of the Affordable Care Act pending merits review by the full Court. Hobby Lobby Stores, Inc. v. Sebelius, 133 S. Ct. 641, 642 (2012).

Opinions written by Supreme Court justices acting alone are known as “in-chambers” opinions and are generally followed as precedent of the Court—they are now included in the formal reports with the phrase “Circuit Justice” after the author’s name. If a justice acting alone grants an application, the other side may request the entire Court to vacate the order, although the Court handbook wryly notes that “[a]s a practical matter, these [requests] are rarely, if ever, granted.” If a justice acts alone to deny an application, the petitioner may make a new application to any justice whom he or she chooses.

There are checks on this seemingly broad power, of course. While litigants may want to approach the justice they perceive as most favorable to their position, they are generally required to approach the circuit justice assigned to oversee the court of appeals where the issue arose. Furthermore, in practice, the justices typically refer highly controversial issues to the full Court for a majority to decide. Requests for stays of execution, for instance, are routinely referred to the entire Court. Even when justices do not refer the issue to the full Court, they often try to act as a surrogate for the entire Court and thus deny applications that they personally might have granted. But this is not always the case. Justice Douglas famously lifted a stay of an injunction banning the U.S. military from bombing Cambodia, although Justice Marshall reversed that order just six hours later after conferring with the rest of the Court. Schlesinger v. Holtzman, 414 U.S. 1321 (1973) (Marshall, J., in chambers).

Decision Making at the Lower Federal Appellate Level

In the lower federal courts, Federal Rule of Appellate Procedure 27 grants authority to a single court of appeals judge to resolve any motion except those that “dismiss or otherwise determine an appeal or other proceeding.” This means that a panel of three judges is required to decide the merits of a case, such as reversing a grant of summary judgment or dismissing an appeal as untimely. An individual judge could in theory decide nearly anything else (although a three-judge panel can review and reverse the decision of a single judge, in case anything goes off the rails).

However, many circuits further limit the authority of a single judge by local rule or practice. The Ninth Circuit General Orders, for instance, require that significant motions be sent to a three-judge motions panel that sits monthly, or to the three-judge panel that will resolve the merit of the appeal. Because most of the routine procedural requests in the Ninth Circuit are decided by the clerk’s office or an appellate commissioner without judicial involvement, single judges have limited authority in practice.

Judges on the courts of appeals do get to make solo decisions when they sit as administrative judges on issues of internal court matters. A pair of striking examples came in 2009 when Ninth Circuit Judges Stephen Reinhardt and Alex Kozinski, each acting individually in their capacity as administrative judge for employment disputes involving the courts, held that the federal Defense of Marriage Act did not permit the federal government to deny health insurance benefits to the same-sex spouses of a court employee and public defender. In re Golinski, 587 F.3d 901, 904 (9th Cir. 2009) (Kozinski, J.); In re Levenson, 560 F.3d 1145, 1146 (9th Cir. 2009) (Reinhardt, J.). These solo orders were handed down six years before the Supreme Court struck down the act in Obergefell v. Hodges, 135 S. Ct. 1732 (2015)but, while prescient, the orders ultimately had little effect. While styled as opinions of the Ninth Circuit, they were administrative orders without the precedential force of an Article III court decision. The government promptly disregarded the orders and blocked the employees’ attempts to obtain health care for their spouses.

Decision Making at the State Appellate Level

At the state level, a single justice of the Massachusetts Appeals Court has the power to review interlocutory orders and injunctions in certain cases, and to decide requests for a variety of stays and procedural orders. In New York, while the full court of appeals votes on whether to grant permission to appeal in civil cases, a single judge can make that decision in a criminal case. In California, by contrast, matters touching on substantive nonemergency relief generally require consideration by a full panel of the court. Indeed, a California Court of Appeal recently struck down the practice of having two judges on a panel, holding that a two-judge panel would be improper even if both judges agreed on the result because “the Legislature unquestionably contemplated a structure of three judges hearing and deciding an appeal.” Johnson v. Appellate Div. of Superior Court, 230 Cal. App. 4th 825, 829 (2014).


It might seem strange that trial judges routinely make solo decisions while appellate judges must generally act in groups. Trial judges often get broad deference on appeal, while intermediate appellate courts almost never get deference when reviewed by a higher court. But the higher up you go, the fewer layers of review and the more parties the ruling will affect. Appellate judges are deciding the law for cases throughout the system. In that context, three heads—or seven or nine or eleven—may be better than one.

Anna-Rose Mathieson and Ben Feuer are partners with the California Appellate Law Group in San Francisco, California.

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