CHOOSING THE PANEL

We can break down high courts into three broad groups in terms of how they decide who hears appeals: no discretion, high discretion, and mixed. These groups are not entirely clear-cut. A court may have formal rules about potential panel sizes, such as statutory provisions setting out the minimum number of judges. Yet, even seemingly strict requirements about the size of panels may also be modified where a judge has a conflict of interest. On the other hand, where a chief justice has discretion to set the panel, he may still be constrained by informal rules such as, for example, a norm against making extreme panel choices to reach particular results. However, it is helpful to think of the institutional structures roughly in these three groups.

No Discretion

The uS Supreme Court is the primary example of a basic lack of discretion in the setting of panels. According to the official Court Rules, any six justices may form a quorum,^[1] but in practice all justices sit on each appeal except where there are vacancies, illnesses, or recusals. A justice may recuse herself from an appeal where, for example, she was involved in the case at an earlier stage or has a conflict of interest. In the period 1970 to the early 2000s, the Court heard almost 80 percent of appeals en banc and about 20 percent in a panel of eight justices. Some courts in other countries have similar rules.^[2]

• [1] Rules of the Supreme Court of the United States (2010), Rule 4 (2), online: http://www.supremecourt.gov/ctrules/2010RulesoftheCourt.pdf.
• [2] Both the South African Constitutional Court and the Supreme Court of New Zealand havesimilar fairly fixed rules. The Constitutional Court of South Africa consists of the Chief Justiceof South Africa, the Deputy Chief Justice, and nine other judges. Constitution of the Republic ofSouth Africa 1996, s 167(1) [RSA Constitution]. It always hears cases en banc, even though theconstitution only requires eight judges to hear a matter. RSA Constitution, s 167(2). Similarly,the Supreme Court of New Zealand, which currently consists of a total of five justices althougha sixth member of the Court can be added, hears all appeals en banc because appeals must beheard by five judges. The Supreme Court Act requires that the Court consists of a chief justiceand no fewer than four nor more than five other judges. Supreme Court Act 2003 (NZ), 2003,ss 17(1), 27(1).