High courts both are designed and decide in very different ways in different countries. Figure 1-5 suggests that justices on the high courts of the various countries behave differently in terms of ideological commitment and cooperation. Some of these courts hear decisions in panels, some do not; some have greater discretion than others in the cases they hear; some have greater involvement of political decision-makers in the appointment process than others. In this book, we look at the relationship between the design of courts and how they behave. We argue that design matters to how judges decide. Where a court sits in CC Space depends in part on how the court is set up.
A large number of studies examine how high court judges make decisions, such as the influence of policy preferences as opposed to the “law" However, it is difficult, if not impossible, to draw conclusions about judicial decisionmaking or make policy prescriptions for improving high courts without an understanding of how the institutional context impacts decision-making. Our interest is in examining the influence of institutional choices made by a particular country or court on how ideologically committed and cooperative are its judges.
The combination of design elements and the attendant location in CC Space has significant implications. First, certain combinations of design elements and location may offend notions of the rule of law. For example, a highly political court that hears appeals in small panels may mean that the outcome at the highest level of court will depend on the panel that hears the particular case. Although some variance across time and across panels is inevitable, adherence to the rule of law would seem to militate against such inconsistency or arbitrariness in outcomes. Second, the design choices and level of cooperation and commitment will also affect outcomes. Norms are a good example. If a court is cooperative but logrolling (vote trading) is the norm, or if a court has a norm of political appointments and deciding solely in accordance with individual political preferences, outcomes may be less likely to foster social welfare than norms that discourage such logrolling or political decision-making. Third, access to justice may be dampened in certain cases. For example, if the appointments system yields judges on a high court who are highly politicized and homogeneous, these judges may limit the ability of certain groups or classes of cases to get on the docket. Finally, the public’s perception of the justice or fairness of a court’s decisions may depend on both how cooperative and committed are its judges. High levels of disagreement, for example, may undermine both the legitimacy of and trust in a court.
We will spend the bulk of the book discussing the influence of different design features, including the appointments process (Chapter 3), the use of panels (Chapter 4), the relationship between judges and others such as their colleagues or the government (Chapter 5), the ability to choose the cases to hear (Chapter 6), the parties that appear before the court (Chapter 7), and the norms of the court (Chapter 8). However, before we embark upon that discussion, we first set out in Chapter 2 our understanding of the potential theoretical role of institutional factors on judicial decision-making.