Home Economics Commitment and cooperation on high courts : a cross-country examination of institutional constraints on judges
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, and only rarely sits en banc. The president of the Supreme Court has exclusive authority to assign justices to various cases. However, in practice, the Court’s registrar arbitrarily composes panels, with the chief justice retaining the power of assigning justices to particularly important cases. 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. 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.
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. In reality, the Court hears appeals in panels of three, five, or seven justices, with five justices being the most common.
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
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