Who Hears the Particular Appeal?
A jury of 500 Athenians decided Socrates’s fate. Socrates had been accused of refusing to recognize the gods of the state and of corrupting the youth of Athens. The jury heard arguments for and against Socrates before finding him guilty. The vote was fairly close—280 against Socrates to 220 in support of him. The jury then chose the punishment of death by a larger margin.
A jury of 500 is large but it wasn’t all Athenians. So why 500, and why these 500? One possible explanation is efficiency—500 jurors could be viewed as giving a fair representation of what all Athenians would have decided, without having to subject all Athenians to the inconvenience of sitting through the trial. Yet as soon as one gets a subset of the Athenians making the decision, one may worry about how they were chosen—were these jurors selected to increase the probability of finding Socrates guilty? It turns out the 500 were selected by lot so there was some randomness as to who was making the decision. However, the lots were drawn not from the whole population but from the population of males over 30 years of age. So the choice of this jury raises issues of both efficiency and politics. Would a different jury have found Socrates not guilty? Were these the best rules for choosing the jury?
These same issues arise on high courts. We saw that the process for appointing judges may make a difference as to how a court decides. Yet it is not only who is on the bench at any given time that may matter, but which of those judges hear a particular appeal. On some high courts such as the US Supreme Court all the judges decide almost all appeals together (en banc). However, on many other high courts around the world only a subset of the judges on the court hears most if not all appeals. In some countries, the chief justice, or the most senior judge, has the power to determine not only how many judges will hear a given appeal but also which individual judges will be participating.
As can be seen in Figure 4-1, very different numbers of judges heard appeals on high courts in the period from 1970 to the early 2000s. All nine judges on
Commitment and Cooperation on High Courts. Benjamin Alarie and Andrew J. Green.
© Oxford University Press 2017. Published 2017 by Oxford University Press.
Figure 4-1 Percent of cases at different panel sizes, 1970 to early 2000s. India and the United States are at the extremes with lower and higher panel sizes, respectively. Canada is more evenly spread across a number of panel sizes.
the uS Supreme Court hear the vast majority of cases, although sometimes only eight judges will hear an appeal where, for example, there is a vacancy or conflict of interest. At the opposite extreme, only two or three of the 31 members of the Indian Supreme Court sit on most hearings. Along this range fall appellate panels in a variety of sizes. The uK House of Lords generally heard appeals in panels of five but the current uK Supreme Court with 12 judges sits in panels of five, seven, or nine judges, as does the Supreme Court of Canada with a total of nine judges. Similarly, Australia with seven judges hears appeals in panels of three, five, or seven. The Supreme Court of Canada had the most equal distribution over a number of panel sizes, with number of cases relatively evenly spread across panels of five, seven, or nine.
As with the Athenian jury, we can imagine two different stories about what happens if not all judges hear every appeal. First, tailoring the size and composition of panels hearing appeals provides a significant efficiency advantage over hearings en banc. A high court can hear more appeals when it divides into small panels to hear cases. India, for example, uses its large number of judges and small panel sizes to hold over 7,500 hearings in a year. Also, depending on how the panels are assigned, the workload can be evenly spread across the judges, and judges can specialize in certain types of appeals. In Israel, for instance, Justice Levi, an expert in criminal law, rendered 30 of 54 criminal law decisions by the Israeli Supreme Court between 1999 and 2002.
The second story is less benign. Whoever has the power to choose the size and composition of panels that hear particular appeals has the power to influence outcomes of the appeals. If the chief justice has the power to decide the size and composition of panels, as is the case in Canada, she may be able to increase the probability of her preferred outcome on a given case if she leaves the judges who are likely to disagree with her off the panel. Consider an example from the uS Federal Court of Appeal. When Chief Justice Tuttle of the Fifth Circuit assigned two or three of four particular judges to a panel in race relations cases, the plaintiff won 67 percent of the decisions as opposed to only 50 percent with other panels.
Which of these stories holds for a particular court will depend on the formal and informal rules around how panels are set. Discretion to decide who hears an appeal is not necessarily a path to biasing outcomes, at least overtly. For example, former chief justice Lamer of Canada indicated that he would try to form a panel of nine justices, the maximum size possible, if he thought the outcome of a case would be different with a panel of nine compared to a smaller panel. Moreover, discretion can avoid potentially quite biased panels that one would expect to sometimes arise if assignment were completely random. However, in order to get a sense of the trade-off across these stories, we start by looking at how different courts decide who decides.
-  Binyamin Blum, “To Concur or Not to Concur, That Is the Question: Theoretical andPractical Question Regarding the Judicial Independence of Judges Appointed Temporarily tothe Israeli Supreme Court” (Master’s Thesis, Stanford Law School, 2006) [unpublished], at 35[Blum].
-  Burton Atkins & William Zavoina, “Judicial Leadership on the Court ofAppeals: A ProbabilityAnalysis of Panel Assignment in Race Relations Cases on the Fifth Circuit” (1974) 18 AmericanJournal of Political Science 701 at 705 [Atkins & Zavoina].
-  Emmett MacFarlane, “The Supreme Court of Canada and the Judicial Role: An HistoricalInstitutionalist Account” (PhD Dissertation, Queen’s University, 2009) [unpublished], at 143.