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Mixed Structures

The line between the high discretion courts and the mixed discretion courts is ill-defined. Although the chief justice or president has considerable discretion to decide on panels for the high courts of Israel, Australia, and India, formal or informal rules may significantly constrain the exercise of this discretion. The Supreme Court of Israel currently consists of up to 15 justices,[1] and only rarely sits en banc.[2] The president of the Supreme Court has exclusive authority to assign justices to various cases.[3] However, in practice, the Court’s registrar arbitrarily composes panels, with the chief justice retaining the power of assigning justices to particularly important cases.[4] Panels must consist of at least three justices, and the most common panel size is indeed three. However, the Court may sit as a panel of a larger uneven number of justices in matters that involve fundamental legal questions and constitutional issues of particular importance.[5] In addition, members of a panel hearing an appeal may order a hearing before a larger panel and “further hearing” panels, which review prior Supreme Court decisions, must consist of at least five justices.[5]

The chief justice similarly has a high level of discretion on the High Court of Australia. At least two of the seven justices on the High Court of Australia are required to hear an appeal.[7] In reality, the Court hears appeals in panels of three, five, or seven justices, with five justices being the most common.[8]

Between 1969 and 2003, the full court decided 21 percent of the cases whereas panels of five heard about 70 percent of the cases.26 The chief justice assigns panels.27 However, the Judiciary Act requires a full court for constitutional cases, unless at least three justices concur in the decision to use a smaller panel.28

Finally, the chiefjustice of the Indian Supreme Court also determines panel size and composition.29 The Supreme Court of India currently consists of 28 judges,30 although since 2008, it may have up to 31 judges.31 All panels must consist of at least two judges,32 but at least five judges must hear cases “involving a substantial question of law as to the interpretation of the Constitution"33 These five- judge constitution benches have become increasingly rare.34 Further, although three-member benches used to hold the majority of the Court’s hearings, two judges now decide most appeals (with norms such as of the junior judge deferring to the senior judge, thus reducing ties).35 The largest bench was 13 judges for Kesavananda Bharati v. State of Kerala, a landmark case that established the “Basic Structure” doctrine for interpretation of the Indian constitution: that the legislature could not alter the Constitution’s basic features (which were left undefined). The 7-6 majority in this case established judicial review in India.36

  • 26. This figure is from the HCJD (Stacia L. Haynie et al. (2007) High Courts Judicial Database. Accessed at the University of South Carolina Judicial Research Initiative, online: www.cas. sc.edu/poli/juri.
  • 27. Rebecca Wood, Why Do High Court Judges Join? Joining Behaviour and Australia’s Seriatim Tradition (PhD Dissertation, Michigan State University, 2008) [unpublished] at 28.
  • 28. Judiciary Act, supra note 241, s 23(1).
  • 29. Nick Robinson, “A Quantitative Analysis of the Indian Supreme Court’s Workload” (2013) 10:3 Journal of Empirical Legal Studies 570 at 591 [Robinson, “Quantitative Analysis”].
  • 30. “List of Supreme Court Judges,” Department of Justice, online: http://doj.gov.in/?q=node/24.
  • 31. Supreme Court (Number of Judges) Amendment Act, 2008. In 1950 when the Supreme Court was created, the Supreme Court consisted of eight judges. This was increased to 11 in 1956, 14 in 1960, 18 in 1978, and 26 in 1986. “Constitution,” Supreme Court of India, online: http:// supremecourtofindia.nic.in/constitution.htm.
  • 32. Supreme Court Rules 1966, Order VII, s 1.
  • 33. The Constitution of India 1950, art 145(3) [India Constitution].
  • 34. Nick Robinson et al., “Interpreting the Constitution: Supreme Court Constitution Benches since Independence” (2011) 41 Economic & Political Weekly 27 at 28 [Robinson, “Interpreting the Constitution”].
  • 35. Robinson, “Quantitative Analysis,” supra note 29 at 578; 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 180-181.
  • 36. Robinson, “Structure Matters,” supra note 35 at 191.

  • [1] “The Judges,” online: http://elyon1.court.gov.il/eng/judges/judges.html.
  • [2] Yoav Dotan, Lawyering for the Rule of Law: Government Lawyers and the Rise of JudicialPower in Israel (New York: Cambridge University Press, 2014) at 24.
  • [3] Courts Act 1984, s 27(a) [Courts Act Israel].
  • [4] Pnina Lahav, Judgement in Jerusalem: Chief Justice Simon Agranat and the Zionist Century(Berkeley: University of California Press, 1997) at 295, n. 25.
  • [5] Courts Act Israel, supra note 20, s 26.
  • [6] Courts Act Israel, supra note 20, s 26.
  • [7] High Court of Australia Act 1979 (Cth), s 5; The Judiciary Act 1903 (Cth) s 19 [Judiciary Act].
  • [8] Russell Smyth, “‘Some Are More Equal than Others’—An Empirical Investigation into theVoting Behaviour ofthe Mason Court” (1999) 6:1-2 Canberra Law Review 193 at 200; Vinod Mishra& Russell Smyth, “Barrister Gender and Litigant Success on the High Court of Australia” (2013)Monash University Department of Economics Discussion Paper No 15/13 at 10, online: http://www.buseco.monash.edu.au/eco/research/papers/2013/1513barristermishrasmyth.pdf.
 
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