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WORKLOAD: HOW WILL ACCEPTING A PARTICULAR CASE AFFECT A JUDGE’S WORKLOAD?

Judges may care about how much work they have to do. Docket control is a key mechanism by which high courts can moderate their own workloads. A court can only hear so many appeals. Judges may be more selective about which cases merit review based on the overall number of applications they receive. A greater number of applications to be heard may mean that the acceptance rate declines.23 Relatedly, as the number of cases appealed as of right increases (that is, the number of appeals the court is obliged to hear), high courts may be more reluctant to grant leave to cases they are not required to hear. Increasing a court’s mandatory others where the answer is not so clear. They argue it is only in these less clear cases that the personal preferences or ideology of the judge matters. Lee Epstein, Andrew D. Martin & Jeffrey A. Segal, “Must Grants, Clear Denials and Mid-level Politics: The First Step towards a Bounded Discretion Model of Certiorari Decisions” (Paper delivered at the 2nd Annual Conference on Institutions and Law-Making, Emory University, 14 February 2012) [unpublished] [Epstein et al., “Must Grants”].

23. Efficiency theories may tie in the cue theory. Clark and Strauss suggest that the ideal scope of a court’s mandatory jurisdiction depends on the perceived quality of lower court decisions. If lower courts tend to reach “correct” outcomes, high courts can maximize their institutional efficiency by granting discretionary review to a small number of difficult or important cases, rather than auditing a wide array of decisions. Therefore, there may also be a connection between the number of petitions that a high court accepts and both the areas of law it chooses to prioritize and the rate at which it reverses lower court decisions. (Tom Clark & Aaron Strauss, “The Implications of High Court Docket Control for Resource Allocation and Legal Efficiency” (2010) 22:2 Journal of Theoretical Politics 247). In addition, there is evidence that high courts aim to maximize their efficiency by making strategic decisions to audit lower court decisions. For instance, although cue theory suggests that lower court conflicts are a consistently positive indicator of petition success, judges may prefer to deny leave when it is not clear which position is correct (Lawrence Wrightman, The Psychology of the Supreme Court (New York: Oxford University Press, 2006) at 64). This allows other lower courts to weigh in on the question. Judges will therefore aim to balance the costs of allowing these disagreements to persist with the informational benefits gained by allowing lower courts’ deliberations on a complex legal issue to persist (Tom Clark & Jonathan Kastellec, “The Supreme Court and Percolation in the Lower Courts: An Optimal Stopping Model” (2013) 75:1 Journal of Politics 150 at 166).

Total cases disposed by the US Supreme Court, 1970-2012

Figure 6-1 Total cases disposed by the US Supreme Court, 1970-2012. Cases disposed is a measure of how many petitions to be heard the Court heard in a given year. The number of petitions rose slowly in the 1970s and 1980s before rising dramatically in the 1990s. source: Federal Judicial Center: Supreme Court of the united States, “Supreme Court, 1878-2012”, accessed February 5, 2016, http://www.fjc.gov/history/caseload.nsf/page/ caseloads_Sup_Ct_totals.

jurisdiction may thus increase access to the court, but also make judges more likely to deny petitions that would otherwise deserve review on the merits.[1]

There are other ways to deal with an increase in petitions. The number of judges could be increased, or appeals could be heard in smaller panels. More judges and smaller panels mean a court can hear more cases than a court that hears all appeals en banc. However, an initial hypothesis is:

H1: Acceptance rates will decline as the total number of petitions to be heard increases and as the number of cases that the court has to hear increases.

The US Supreme Court is a good place to start to see if judges respond to workload because it has long had nine justices and heard appeals en banc. As seen in Figure 6-1, petitions to be heard by the Court since 1970 can be broken down

Percent of petitions for cert and appeal granted by the US Supreme Court, 1970 to 2012

Figure 6-2 Percent of petitions for cert and appeal granted by the US Supreme Court, 1970 to 2012. The Court significantly reduced the percentage of petitions it agreed to hear starting in the late 1980s, leveling off by 2000.

source: Percent granted was calculated by dividing Petitions for Certiorari and Appeals granted Plenary Review by Cases Disposed, from Federal Judicial Center: Supreme Court of the United States, “Supreme Court Dispositions, 1970-2012”, http://www.fjc. gov/history/caseload.nsf/page/caseloads_Sup_Ct_Methods_of_Disposition_2, accessed February 5, 2016, and Federal Judicial Center: Supreme Court of the United States, “Supreme Court, 1878-2012,” http://www.fjc.gov/history/caseload.nsf/page/caseloads_ Sup_Ct_totals, accessed February 5, 2016, respectively.

into two basic periods—the 1970s/1980s where petitions were increasing slowly but were fairly steady, and then the 1990s onward where petitions increased dramatically. Interestingly, in 1988, right at the break between the two periods, the US Supreme Court obtained virtually complete control of its docket with the ending of most of its mandatory caseload.[2]

If judges were concerned at least in part about workload, they would agree to hear a lower percentage of these petitions as the number increased, particularly in the later period. This decline is seen in Figure 6-2, which shows that the percent of petitions that the Court agreed to hear. The percentage has a slight downward trend (though with a significant variance) in the pre-1988 period. In fact, this downward trend was an extension of a precipitous drop in the grant rate during the 1940-1970 period, when the number of petitions more than tripled. As recently as 1949 the Court accepted 15 percent of petitions for certiorari, and in 1932, the Court agreed to hear a full 28 percent of petitions for certiorari.[3]

Jucewicz and Baum argue that the Court may have dropped the acceptance rate before 1970 in order to maintain a reasonable workload—that is, the judges adjusted to the large increase in petitions.[4] To see if judges also adjusted to small fluctuations in petition levels, they examined the terms from 1975 to 1984, which was a period of relative stability in petitions.[5] They found the Court’s standards for accepting cases remained fairly constant during this period. For the most part, the more cases that came to the Court, the more it accepted.[6] Thus during the period of relative stability they examined, justices did not feel the need to adjust their case-screening criteria to relatively small changes in total number of petitions.[7]

The period after 1988 clearly saw another dramatic increase in people asking the Court to hear their appeals. The number of petitions for leave to appeal disposed of by the Court jumped from between 4,000 and 5,000 to an average of just over 8,000 between 2002 and 2012 (Figure 6-1). As the workload theory would predict, Figure 6-2 shows a corresponding dramatic drop in the percentage of these petitions the Court agreed to hear. Interestingly, however, maintaining a steady workload is likely not the only factor in this decline. As the number of applications increases, the percentage that are truly worthy of being heard by the Supreme Court may drop. Further Figure 6-3 shows that judges also have been hearing fewer appeals in recent years—dropping from over 150 in the 1970s and 1980s to under 100 by the 2000s. The drop in the acceptance rate was therefore a combination both of agreeing to hear a lower percentage of the ever-expanding number of petitions in order not to be overwhelmed and of hearing fewer cases per year. Clearly more is going on here than just maintaining a constant workload in terms of number of cases.[8]

Number of cases heard per year by the US Supreme Court, 1970 to 2012. Not

Figure 6-3 Number of cases heard per year by the US Supreme Court, 1970 to 2012. Not

only did the percentage of petitions the Court agreed to hear drop in the late 1980s, but

the total number of cases it heard per year also dropped significantly.

source: Cases argued from Federal Judicial Center: Supreme Court of the united States,

“Supreme Court Dispositions, 1878-2012,” accessed February 5, 2016, http://www.fjc.gov/

history/caseload.nsf/page/caseloads_Sup_Ct_Methods_of_Disposition_2.

Do other courts exhibit a concern for workload? The Supreme Court of Canada also has considerable control over its docket, although less so than in the United States. The Canadian Supreme Court obtained substantial control over its own docket in the late 1970s, with today about 80 percent of the cases it hears annually arising from the leave-to-appeal process. As in the United States, there have been changes in the petition rates and acceptance rates for the Court but the levels are much lower. As Figure 6-4 shows, more petitioners have sought access to the Court in recent years—from an average of 493 in the 1990s to 548 after 2000. Justices at the same time granted leave to appeal to a lower percentage of applications over time, from an average of 15 percent in the 1990s to less than 12 percent after 1990 (Figure 6-5). As in the United States, the acceptance rate dropped both due to the increase in applications but also due to a slight decrease in the number of cases accepted. In the 1990s, the Supreme which makes them less able to agree on hearing appeals: Ryan J. Owens & David A. Simon, “Explaining the Supreme Court’s Shrinking Docket” (2012) 53:4 William and Mary Law Review 1219 at 1265 [Owens & Simon].

Number of applications for leave to appeal and number of leave applications granted for the Supreme Court of Canada, 1990-2013

Figure 6-4 Number of applications for leave to appeal and number of leave applications granted for the Supreme Court of Canada, 1990-2013. The number of applications rose over the period, though more slowly in the united States.

source: Benjamin Alarie & Andrew James Green, “Docket Control at the Supreme Court of Canada: What’s Behind the Screen?” (July 21, 2014) [unpublished] online: https://ssrn.com/abstract=2469326

Grant rate (percent) for applications for leave to appeal, Supreme Court of Canada, 1990-2013. The grant rate drops markedly through the 1990s before leveling off somewhat by 2000

Figure 6-5 Grant rate (percent) for applications for leave to appeal, Supreme Court of Canada, 1990-2013. The grant rate drops markedly through the 1990s before leveling off somewhat by 2000.

source: Benjamin Alarie & Andrew James Green, “Docket Control at the Supreme Court of Canada: What’s Behind the Screen?” (July 21, 2014) [unpublished] online: https://ssrn.com/abstract=2469326.

Number of cases argued before the Supreme Court of Canada in total, by leave and as of right, 1970-2012

Figure 6-6 Number of cases argued before the Supreme Court of Canada in total, by leave and as of right, 1970-2012. The Court has heard fewer cases in recent years after climbing up in the 1970s and then the early 1990s. The late 1980s saw an increase in total cases but the increase was related to an increase in as of right cases rather than a large increase in cases heard with leave. source: Alarie and Green database.

Court agreed to hear on average 73 cases per year (in addition to appeals as of right), but after 1990 that number fell to 65 per year (Figure 6-4).

Two other influences on workload are important in Canada beyond the number of cases that the justices agree to hear. First, as we saw, the Court has to hear certain criminal cases, and therefore its workload includes both those it has to hear and those it agrees to hear. A justice deciding whether to agree to the Court hearing an appeal may base her choice at least in part on both the number of applications to be heard and the general level of appeals the Court has to hear. Figure 6-6 divides the cases argued in a term into those for which leave was granted and those that were heard as of right.[9] There is a slight downward trend in the total number of cases heard since 1980. We can also see that when we look over a slightly longer time frame, the Supreme Court has agreed to hear fewer cases after it obtained greater control over its docket in the late 1970s and headed into the Charter era (the Charter of Rights and Freedoms being adopted in 1982). Although there was a significant increase in the number of

Percentage of different Panel Sizes, Supreme Court of Canada, 1970-2012

Figure 6-7 Percentage of different Panel Sizes, Supreme Court of Canada, 1970-2012. The number of panels of five justices have declined steadily over the period whereas panels of nine have been increasing in the post-Charter era. source: Alarie and Green database. Note that these totals do not include panels of six or eight.

cases argued in the late 1980s, a large part of the increase was due to an increase in as of right cases in that period (possibly due to criminal cases with Charter implications working their way through the system). There was, however, no significant reduction in the number of cases heard with leave in this period. This lack of response to the variation in the number of as of right cases implies that the workload theory does not fit for the Supreme Court of Canada (at least assuming that the changes over time in the as of right cases are not correlated with the quality or quantity of the other cases).

Second, in Canada and a number of other countries the chief justice has a tool for moderating caseload that is not available to the chief justice of the uS Supreme Court. The chief justice of the Canadian Supreme Court can set small panels to hear certain cases and therefore reduce the workload of the justices in terms of the total number of cases they need to hear.[10] The Court may then have offsetting ways to deal with the increasing number of applications to be heard. The justices can reduce the percentage of applications they agree to hear or the chief justice can reduce the average panel size that hears each case. Interestingly, if we look at the distribution of panel sizes since 1970 in Figure 6-7, chief justices do not appear to have used panel size in this manner. Instead, as the applications have risen, the number of cases granted leave has declined but the average panel size has increased. Panels of five have declined steadily as panels of nine have risen. Chief Justice McLachlin, the current Canadian chief justice, for example, has decreased the number of five judge panels even as the number of applications for leave increased. She therefore has not responded to the increased demand by increasing the number of appeals the Court hears, even though she can moderate the load by using panels of five judges. She instead appears to be absorbing the extra time from the fewer cases by ensuring the full court hears more cases.

The uK Supreme Court has not been in existence for long, but the patterns are interesting. As can be seen from Figure 6-8, in its first five full years of operation the Court disposed of a much lower (though increasing) number of applications for leave to be heard by the Court than in the united States or Canada—rising from a little under 200 to almost 300 by 2014. The Court granted leave at a much higher rate than either the uS Supreme Court or even the Supreme Court of Canada, rising over the period though not as rapidly as the number of applications. The Court granted leave to 67 applications in 2010 but over 80 per year in the last three years, with a grant rate of about 30 to

number of applications for leave to appeal in total, granted and refused, as well as number of applications for appeal filed as of right, uK Supreme Court 2010-2014

Figure 6-8 number of applications for leave to appeal in total, granted and refused, as well as number of applications for appeal filed as of right, uK Supreme Court 2010-2014. All of these applications have increased over the period, though the number of applications for leave granted may have leveled off. The number of applications for leave disposed is found by adding those refused and granted (as opposed to the number of applications filed, as some were not disposed of within the year). source: UK Supreme Court Annual Reports found at www.supremecourt.uk/news/the- supreme-court-annual-reports-and-accounts.html, last accessed February 9, 2016.

40 percent over the period. Finally, the number of appeals filed as of right has increased over the period. It will be interesting to see if the number of cases granted leave continues to hold steady if there continues to be increasing applications for leave as well as applications filed as of right.

The Indian Supreme Court took a different path. In India, the number of people wanting their appeals heard by the Supreme Court rapidly increased following independence. According to Robinson, the number of admission matters the Court instituted increased five times (from 1,037 to 5,549) between 1950 and 1976 and then another five times again in the next five years due to the 1975-1977 state of emergency (“the Emergency”).[11] After a small drop, the number of matters seeking admission rose steeply and consistently through the 1990s and 2000s.

The Indian Supreme Court did not cap or even reduce its acceptance rate in the same way that the united States and Canada seem to have done. Instead it responded to the increased demand in three ways. First, it tolerated backlogs— as the court admitted more cases, the average wait time to hear cases increased.[12] For example, by 2011, 43 percent of regular hearing matters were heard within two years of being commenced, but 40 percent took from two to five years to be heard, and 17 percent were older than five years.[13] Second, the number of judges on the Indian Supreme Court increased dramatically over time. The Court started with eight judges in 1950 but increased to 11 in 1956, then 14 in 1960, 17 in 1977, 26 in 1986, and finally up to 31 in 2008.[14] Third, the Court reduced its average panel size. As Figure 6-9 shows, the Court heard more appeals in panels of two and fewer large panels, including a dramatic decline in five-judge panels that hear constitutional matters.[11] The Court therefore changed how it heard appeals in order to help satisfy at least some of the increasing demand (although the increases in the number of judges and reduction in panel size may also have spurred some demand by increasing the capacity of the Court). Robinson’s data shows a “rush of litigants toward the top of the system,” which he suggests may be due to even more severe backlogs in the lower courts, which litigants seek to avoid.[16] The Supreme Court, he points out, has been “quite willing to oblige”[16]

Number of cases of differing panel sizes

Figure 6-9 Number of cases of differing panel sizes (from sample per year of about 100 cases), Indian Supreme Court, 1970-2000. The number of five-judge panels has stayed low over the period, whereas the number of two-judge panels increased. source: High Courts Judicial Database.

Judges may then care about workload when they are considering whether to hear appeals. However, it is clearly not the only factor. First, courts may use other methods to moderate workloads such as changing the number of judges on the bench or using smaller panels. Second, even if workload does play a role, the judges still have to have some method to select the appeals they want to hear, be it cues of importance or ideology. It is to these explanations that we now turn, starting with whether judges use cues.

  • [1] Similarly a particular court’s acceptance rates (the rate at which it agrees to hear appeals)will vary depending on its available resources. When a court is not at full capacity, maintainingits prior caseload would place additional burdens on each sitting judge. Vacancies may therefore create disincentives for individual judges to vote in favor of granting leave.
  • [2] Jeffrey A. Segal, Harold J. Spaeth & Sara C. Benesh, “The Supreme Court in the AmericanLegal System” (New York: Cambridge University Press, 2005) at 276.
  • [3] “History of the Federal Judiciary: Supreme Court of the United States, Method ofDisposition 1932-1969,” Federal Judicial Center, online: http://www.fjc.gov/history/caseload.nsf/page/caseloads_Sup_Ct_method_of_disposition.
  • [4] Joseph Jucewicz & Lawrence Baum, “Workload Influences on Supreme Court AcceptanceRates” (1990) 43:1 Western Political Quarterly 123 [Jucewicz & Baum] (they quote Chief JusticeRehnquist as stating “[t]oday we decline to review cases involving important questions of federal law not previously decided by our Court, cases which the Court would have unquestionably heard and decided as little as thirty years ago” at 125).
  • [5] Jucewicz & Baum, supra note 27 at 126.
  • [6] Jucewicz & Baum, supra note 27 at 130.
  • [7] Jucewicz & Baum, supra note 27 at 133-134.
  • [8] As we will see, Owens and Simon argue that the drop in the number of cases that the USSupreme Court hears may be in part due to an increasingly ideological split on the Court,
  • [9] Note that these numbers will be different from those cases that were granted leave duringa given year as there is a lag between when an appeal is granted leave and when it is argued.
  • [10] See Chapter 4 for a discussion of how the chief justice sets panel size.
  • [11] Robinson, “Quantitative Analysis,” supra note 4 at 578.
  • [12] Robinson, “Quantitative Analysis,” supra note 4 at 589.
  • [13] Robinson, “Quantitative Analysis,” supra note 4 at 591.
  • [14] 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 182.
  • [15] Robinson, “Quantitative Analysis,” supra note 4 at 578.
  • [16] Robinson, “Quantitative Analysis,” supra note 4 at 582.
  • [17] Robinson, “Quantitative Analysis,” supra note 4 at 582.
 
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