Does a Balanced Process Lead to Cooperative Judges?

So far we have been looking at whether political appointers and a political appointment process lead to political judges. Can we get more cooperative judges from a more balanced, more cooperative process? Where committees involving different parties appoint judges, the courts may not be as polarized and there may be higher levels of unanimity, all other things being equal. Judges appointed by a cooperative process may be less politically motivated because any politically motivated or extreme candidate would not be acceptable to part of the committee. Further, as with a political process, judges appointed through a cooperative process may view their role as less tied to their political views than they would through a political process.

Of course, high levels of unanimity are still possible without a balanced process. If the executive or the legislature appoints judges and a single party holds sway for a long period of time, the judges may agree because they share the same political outlook. Unanimity may also be high where judges are in control of appointments. In India, for example, where the chief justice and existing judges select new judges, appointees may be less likely to disagree with their more senior colleagues. The ideology of the appointer is in effect the ideology of the current court. In other words, the current court would serve as a homogenizing influence, with judges seeking to appoint new judges who are similar to themselves, leading to relatively less disagreement.

We therefore formulate the following hypothesis:

H3: A court will have higher levels of unanimity if justices are appointed as a result of cooperation between different branches of government, or if the judicial branch has significant influence over the appointment process, all other things being equal.

Countries such as the UK and Israel that appoint justices by committee, or India where judges appoint future judges, may then have higher rates of cooperation. Of course, once again causation will be difficult to pinpoint. As we will see in Chapter 8, unanimity may be affected by a range of factors from panel size to norms on the court. However, a first question is whether there appears to be any connection between the appointment process and the level of cooperation.[1] In Israel, for example, a committee appoints justices but the existing justices on the committee have the ability to effectively veto any appointment. We could expect the existing members of the Israeli Supreme Court to use their power over the Appointments Committee to ensure that like-minded candidates are appointed. These like- minded candidates would then be more likely to agree with their colleagues once they arrive on the Court. Justices on the Israeli Supreme Court have tended to dissent at a very low rate, with well over 90 percent of all decisions being unanimous.[2]

Table 3-2 summarizes the relevant features of these high courts and their rates of unanimity, and inserts the uS Supreme Court for the sake of comparison. Israel has a low dissent rate as does India and, more recently, the uK.[3] By

Table 3-2. Judicial and Committee Involvement in Appointment Processes and Rates of unanimity on Selective High Courts

Country

Judicial power over appointment process

Use of independent committee

Rate of unanimity

Israel

?

?

Very high (90%+)a

India

?

Very high (90%+)

UK (post-2005)b

?

?

High

US

Low (40%)

a Effect is especially pronounced amongst judges who were temporarily appointed. b Appointment process previously dominated by the executive.

comparison, the uS Supreme Court reaches consensus in less than half of its total cases.151

A curious feature of the Israeli Supreme Court may provide some evidence of the influence of the process on the level of cooperation. As we saw, justices are often first appointed to the Court on a temporary basis before being confirmed by the Appointment Committee. Given the Supreme Court’s influence on the Appointment Committee, it would seem logical for temporary appointees to refrain from disagreeing with their permanently appointed colleagues in order to maximize their chances of being promoted to a permanent position on the Court. And this holds true. Temporary appointees who agree more with the senior justices of the Court had slightly better chances of getting a permanent seat in the Court.152 Further, between 1999 and 2005 temporary appointments process, and the president’s role was chiefly announcing the appointments. Between 1950 and 1967, 91.6 percent of decisions published by the Indian Supreme Court were unanimous. Again the high rate of unanimity is consistent with our hypothesis, though it is related to other factors such as the high caseload, small panels, and the fact that Indian judges are drawn from “a remarkably homogeneous group of men.” George H. Gadbois, Jr., “Indian Supreme Court Judges: A Portrait” (1969) 3 Law and Society Review 317 at 149, 151, 318. For a more recent study, see Nick Robinson, “Structure Matters: The Impact of Court Structure on the Indian and U.S. Supreme Courts” (2013) 61:1 American Journal of Comparative Law 173 at 187. Even on constitutional cases, which are considered the most contentious cases on the Supreme Court’s docket, the Court reached consensus 76 percent of the time. Nick Robinson et al., “Interpreting the Constitution: Supreme Court Constitution Benches since Independence” (2011) 41 Economic & Political Weekly 27 at 28.

  • 151. Alarie & Green, “McLachlin Era,” supra note 135 at 476.
  • 152. Salzberger, “Temporary Appointments,” supra note 145 at 504 (examining the period 1948-2011).

had a low dissent rate, and this dissent rate increased slightly after they were granted tenure on the Court.[4]

The uK arguably has a more balanced committee process with appointments to the Supreme Court being made by a selection commission with input from the executive, the judiciary, and lay members of the citizenry. This process was only put in place in 2009 with the advent of the uK Supreme Court, and evidence of the effect of this change is limited. The shift to a more neutral and independent appointment mechanism may partially cause an increase in consensus. However, there was a strong norm of consensus on the House of Lords even under the old appointment system dominated by the executive.[5] Further, the increased collegiality may be the result of other institutional changes such as frequent transmissions of judgments between judges, pre-meetings, and greater use of technology on the Supreme Court, especially from 2012 onward.[6]

When we look at our data for the percentage of cases that have at least one dissent across countries in the period from 1970 to the early 2000s (Figure 3-9, which reproduces Figure 1-3 for convenience), we can see that these prior indications from the literature hold. The united States has the highest rate of cases with at least one dissent and India the lowest. In this period, the executive in each of Australia, Canada, and the uK essentially made the appointment decision. They each had intermediate levels of cases with at least one dissent, though the levels varied.

As we saw in Chapter 1, another indicator of consensus is how many judges are willing to dissent, rather than just if any single judges decide to dissent. We can look to the fraction of dissenting opinions as a measure of disagreement— the number of dissenting opinions divided by the number of decisions. Figure 3-1 0 (which reproduces Figure 1-4 for convenience) shows the differences in fraction dissenting over the period from 1970 to the early 2000s. Again, the united States has the most disagreement with the highest fraction of dissenting opinions (that is, the most dissenting opinions for its caseload), and India was at the other end of the spectrum with a very low fraction of dissenting opinions. Australia, Canada, and the UK were in the middle. Notice that the UK House of Lords, as we discussed, had a high rate of agreement (a low fraction dissenting) even before the change in the appointments process for the uK Supreme Court.

Percent of cases per year that have at least one dissent over the period from 1970 to the early 2000s

Figure 3-9 Percent of cases per year that have at least one dissent over the period from 1970 to the early 2000s. The box shows the middle 50 percent of the data for each country, and the line in the box shows the median percentage for cases with at least one dissent over the period. The lines above and below each box provide the maximum and minimum annual percentages of opinions with at least one dissent for each country in the period. The united States had by far the highest rate of dissenting with over 50 percent of opinions having a dissent in most years. At the other extreme, most years India had less than 5 percent of opinions with at least one dissent. Canada and the uK had similar rates of opinions with dissents. Australia had the second highest level of dissent with in general over 40 percent of opinions having a dissent.

As with political voting, therefore, there is some weak, initial correlation between who appoints judges and how likely judges are to dissent. The most political process, that in the united States, has the highest dissent rate and the least political, the Indian, the lowest dissent rate. The systems with similar systems have similar dissent rates. Of course, many other factors go into dissent rates, such as norms on a court and workload. We will sort out some of the key factors in Chapter 8.

  • [1] South Africa has also used a Judicial Services Commission to appoint judges to its highcourt since the 1990s. However there has been no empirical literature on the South AfricanSupreme Court of Appeal or its Constitutional Court that focuses exclusively on the postapartheid era. Much of the study of South African judicial decision-making has focused on theapartheid era, when the executive made appointments. Haynie found a high level of consensusin the apartheid era for the Appellate Division, possibly due to the small panel sizes or lack ofcontrol over its docket. Haynie, Black and White, supra note 85 at 72.
  • [2] Salzberger, “Temporary Appointments”, supra note 145 at 504; Blum, supra note 55 at 37.
  • [3] Even before the Three Judges Cases that formally allocated the power of selecting SupremeCourt judges to the judiciary, the chief justice already played a central role in the selection
  • [4] Blum, supra note 55 at 37.
  • [5] See Arvind & Stirton, supra note 86; Hanretty, “Ideal Points,” supra note 108.
  • [6] Alan Paterson, Final Judgment: The Last Law Lords and the Supreme Court (Oxford: Hart,2013) at 196.
 
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