SETTING PANELS

As we note above, the chief justice has more or less room to set such panels depending on the size of the court, the size of the panels, and the degree of heterogeneity in voting across judges on the court. The united States of course has avoided all the concerns about the chief justice using the panel-setting powers to game outcomes by having a norm of hearing all appeals en banc (unless there is a vacancy or a conflict of interest). It does so at the potential expense of efficiency—of hearing more cases or using expertise to its best advantage.

At the other extreme is India. Instead of attempting to control the number of cases that come before the Court, the Court was expanded over time, and the panel size was set small. There is not a large variance in panel sizes, though there is some increase for constitutional cases. As a result, however, chief justices have the greatest potential for composing panels to meet their own policy preferences. As we saw in Figure 4-5, there is some evidence that they did so in past decades.

In between these extremes, again, are Canada, the uK, and Australia. As in India, the senior law lord in the uK had significant potential for setting panels to accord with his own views, given the size of the court and the panels. Figure 4-5 provides some limited evidence that senior law lords did so to a small extent across different areas of law. The chief justices in both Canada and Australia had less scope for gaming than the senior law lord in the uK, and there is some evidence that they resisted this temptation at least in some cases. Further, they were less likely to structure panels according to their own views across all areas of law, though chief justices in Canada may have done so to a greater extent in civil rights cases. Finally, chief justices in Canada were most likely to use this power to vary the size of the panel according to the nature of the case, potentially taking advantage of the efficiency gains from the panel-setting power.

However, judges may not vote solely because of the appeal in front of them. They may also take into account their relationship with others—either with other judges on the bench or with other institutions. It is to these relationships that we now turn.

 
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