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United States

We start with an overview of the Supreme Court of the united States, because it is the most studied court and for that reason the most easily located in CC Space. It provides a relatively clear point from which to situate other courts. There is no objective location for the origin in CC Space as there is no clear measurable counterpart to either dimension. We will therefore use the uS Supreme Court as a base point and define all other countries relative to it.

The Supreme Court of the United States has nine justices who hear appeals en banc—that is, all nine judges sit on all appeals.[1] The president appoints the justices “by and with the Advice and Consent of the Senate"[2] The executive branch (the president) and the legislative branch (through the Senate) therefore share the appointment power. The president nominates a candidate generally after consulting with Senate party leaders, members of the Senate Judiciary Committee, and other party leaders or interest groups.[3] The Senate Judiciary Committee then holds a public hearing after a pre-hearing investigation and makes a recommendation to the full Senate, which holds a debate on the candidate. If the Senate votes in favor of the candidate, the president appoints him or her to the bench.

The US court system has both a federal court system with District Courts and Courts of Appeals as well as a system of state courts. Unlike some other high courts, the US Supreme Court has almost complete control over the cases it hears (its “docket”).[4] It hears appeals from lower courts in the federal court system as well as appeals from state supreme courts relating to federal law. The justices have clerks who prepare memos including recommendations on each petition to be heard by the Court. The chief justice creates a list of all petitions he believes should be considered. The justices of the Court then vote on the petitions on the list according to the Rule of Four—at least four justices must vote for the petition to be heard by the Court. The Court typically hears about 1 percent of the appeals that apply to be heard (in 2009-2010, for example, the Court granted 82 of the approximately 8,000 applications to be heard).[5]

The US Supreme Court seems clearly to be an attitudinal court (see Figure 1-5). We can measure how politicized a court is in many ways such as by whether judges vote in cases according to the politics of who appointed them, by how conservative or liberal they appear at the time they are appointed, or by how conservatively or liberally they vote relative to other judges over the course of their careers. The US Supreme Court can be considered politicized on all these measures. For example, uS Supreme Court justices appointed by Republican presidents predictably tend to vote in a more conservative fashion than those appointed by Democratic presidents.[6]

One way to picture this is to see whether judges on a court tend to vote in a predictable fashion. We will discuss more of this in Chapter 3 but the uS empirical literature has made an industry out of dividing votes in various areas of law into “liberal” and “conservative.” Liberal votes are, for example, a decision by a judge in favor of a criminal in criminal cases, a claimant in a civil rights case, or a union in a labor case. If we sum up all the cases in which a judge votes in a liberal direction and divide by the total number of decisions made by that judge over the whole period we are studying, we can obtain that judge’s long-term liberal voting rate.[7] To see how similar judges on a court are in terms of voting liberally versus conservatively, we can look at the range of these long-term liberal voting rates on the court in any year (that is, the difference between the judge with the highest and the lowest long-term liberal voting rate on the court in any given year). Figure 1-2 shows how these ranges varied across courts over the period 1970 to the early 2000s. The US Supreme Court had the greatest range in its justices over the five courts in the figure, with the bulk of years having about a 40 percent difference between the justice with the highest long-term liberal voting rate and the justice with the lowest (the median of the ranges was 43 percent). The size of the range does not provide direct evidence of politicization but it gives one (partial) indicator of the degree of polarization on a court. We will discuss other measures in more depth in Chapter 3.

Further, in terms of cooperation, justices on the uS Supreme Court dissent at a much higher rate than judges in other countries. For the term beginning in October 2014 it decided 30 cases unanimously out of 74 total cases, (a unanimity rate of 41 percent) while 19 cases (26 percent of the total) were decided by a bare majority of five of the nine justices.[8] As can be seen from Figure 1-3, if we look over the period from 1970 to the early 2000s, countries varied widely in the percent of cases per year with at least one dissent. The US Supreme Court’s

Range of long-term liberal voting rates of judges on the court in a given year

Figure 1-2 Range of long-term liberal voting rates of judges on the court in a given year (the difference between the judge with the highest long-term liberal voting rate and the lowest long-term liberal voting rate on the court in that year) over the period 1970 to the early 2000s. The box shows the middle 50 percent of the values taken by the range, and the line within the box is the median range over the period. The lines above and below the box are the maximum and minimum ranges in the period. The united States had the highest median range in long-term liberal voting rates over the period, whereas the uK, Australia, and Canada had median ranges that were less than half that of the united States. source: HCJD and Spaeth database.

decisions more often than not tended to involve at least one dissent over this period whereas the judges of the Indian Supreme Court only rarely dissented.

Another measure of the extent of non-cooperation is how many judges dissent (as opposed to just whether a decision has at least one dissenting opinion). To get at this measure, we can look at what Epstein, Landes, and Posner call the “fraction of dissenting opinions" which they define as the number of dissenting opinions in a term divided by the number of decisions in the term.[9] Figure 1-4 shows the fraction of dissenting opinions for various countries from 1970 to the early 2000s.[10] The US Supreme Court clearly has a much higher rate of noncooperation than the other countries on this measure, with a median of about 1.5 dissenting opinions for every decision.

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

Figure 1-3 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. source: HCJD and Spaeth database.

We have placed the courts we are looking at in CC Space in Figure 1-5. It provides a sense of how we view these courts relative to each other, but of necessity is quite general based on our review of the literature and the data for each court. As a point of reference for other high courts, therefore, the uS Supreme Court is quite politicized and not very collegial.

  • [1] The Court does sit with fewer than nine judges when there is a vacancy on the Court or ifone of the judges has a conflict of interest in hearing the particular appeal.
  • [2] U.S. Const. art. I, § 2, cl. 2.
  • [3] See Denis Steven Rutkus ed, Supreme Court Appointment Process: Roles of the President,Judiciary Committee, and Senate (New York: Nova Science, 2005) (Congressional ResearchService) (an overview of the appointment process).
  • [4] There are some appeals that the Court must hear such as certain death penalty issues. Seee.g. Ryan C. Black & Christina L. Boyd, “Selecting the Select Few: The Discuss List and the U.S.Supreme Court’s Agenda-Setting Process” (2012) 94:4 Social Science Quarterly 1124 [Black &Boyd, “Selecting”] (an overview of the US certiorari process).
  • [5] Black & Boyd, “Selecting,” supra note 17 at 1124.
  • [6] See e.g. Segal & Spaeth, Attitudinal Model, supra note 3; Alarie & Green, “Should They All,”supra note 5 at 74.
  • [7] These results are based on the HCJD, supra note 11, which sorts cases into “pro” and “con”directions that for present purposes, we will take as “liberal” and “conservative.” For a description of the categorization of cases and outcomes that we used based on the HCJD, supra note11, see Appendices 1 and 2.
  • [8] Kedar Bhatia, “Final Stat Pack for October Term 2014: Merits Cases by Vote Split” (June 30,2015) SCOTUSblog (blog), online: http://sblog.s3.amazonaws.com/wp-content/uploads/2015/07/SB_votesplit_OT14.pdf at 5.
  • [9] Epstein, Landes & Posner, Behavior, supra note 2 at 281-282.
  • [10] See Appendix 1 for a description of the data and Appendix 3 for a discussion of fractiondissenting.
 
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