WHO GETS TO DECIDE WHICH CASES TO HEAR?
High courts differ in terms of selecting the cases they hear in two broad ways. First, some courts have more discretion to refuse to hear certain cases. At one extreme are the high courts in Australia, New Zealand, and the united States, which effectively have full control over which cases they hear. Parties who wish the court to hear their appeal must ask permission of the court. At the other extreme, some courts must hear a wide range of cases, such as the Israeli Supreme Court, which acts as the first level of review for several types of disputes.
Other countries fall somewhere in-between these extremes, providing a right to appeal in limited circumstances while requiring most appeals to obtain consent of the court. In Canada, for example, approximately 20 percent of the Supreme Court’s docket consists of appeals heard “as of right," meaning that the court has no choice but to hear those appeals. An individual has a right to have her appeal heard by the Supreme Court in criminal cases where a judge dissents at the court of appeal or the court of appeal has overturned an acquittal. In addition, both the United Kingdom Supreme Court and the South African Supreme Court of Appeal are required to hear cases that have been certified for appeal by the lower courts, although for most cases the courts themselves usually grant permission directly.
The second way high courts differ is in how they select the cases to hear when they do have a choice. Although most courts have some similar form of test to be heard based on the importance of the appeal (for example, whether it is of “national importance”), courts vary in terms of who decides if the test is met. The full bench of the uS Supreme Court votes on whether to hear cases (which they call granting certiorari or “cert”), based on a “discuss list” of potential applications compiled by the chief justice.11 The Court follows a Rule of Four— four judges must vote to hear the case for it to go on the Court’s agenda.12 Other courts allow subsets of judges to decide which cases to hear. In Canada and the United Kingdom, a panel of three justices decides whether the Court hears an appeal (grants “leave to appeal”), subject to review by the entire Court (which in most cases is perfunctory).13 Going even further, a single justice of the Israeli Supreme Court generally reviews petitions to be heard by the Court, although that judge may refer the decision to a three-justice panel.14 As individual justices rarely accept applications outright, the Israeli Supreme Court effectively relies on two levels of screening.15
A further difference across courts is whether law clerks are involved in the selection process. Some courts, such as in the United States,16 Canada,17 and the UK,18 allow clerks to write memoranda concerning upcoming petitions. The
Courts: Strategic Behaviour in the South African Supreme Court of Appeal” (2010) 37:2 Politikon 269 at 271-272.
- 11. H.W. Perry, Deciding to Decide: Agenda Setting in the United States Supreme Court (Cambridge, MA: Harvard University Press, 1991) at 85.
- 12. In one case, the Rule of Four was subverted when four judges voted to hear a case involving capital punishment, but they could not persuade one more judge to be the fifth vote needed to grant a stay of execution. The Texas inmate was executed while waiting for his Supreme Court hearing, and the case was declared moot. Hamilton v. Texas, 497 U.S. 1016 (1990).
- 13. See Roy Flemming, Tournament of Appeals: Granting Judicial Review in Canada (Vancouver: UBC Press, 2004) at 59 [Flemming, Tournament of Appeals].
- 14. Theodore Eisenberg, Talia Fisher & Issi Rosen-Zvi, “Case Selection and Dissent in Courts of Last Resort: An Empirical Study ofthe Israeli Supreme Court” in Yun-chien Chang, ed, Empirical Legal Analysis: Assessing the Performance of Legal Institutions (Abingdon, UK: Routledge, 2014), 181 at 192 [Eisenberg et al., “Case Selection”].
- 15. Eisenberg et al., “Case Selection” supra note 14.
- 16. Todd C. Peppers & Christopher Zorn, “Law Clerk Influence on Supreme Court Decision Making: An Empirical Assessment” (2008) 58 DePaul Law Review 51 at 52.
- 17. Lorne Sossin, “The Sounds of Silence: Law Clerks, Policy Making and the Supreme Court of Canada” (1996) 30 University of British Columbia Law Review 279 at 289.
- 18. Dickson, “Processing,” supra note 10 at 577.
judges may ultimately rely on these memoranda to make the crucial decision to grant or deny review. Other high courts do not allow clerks as large a role. In India and Australia, for example, the petition process relies less on written memoranda and more on oral presentations, in which clerks do not take part. Although we do not differentiate across courts on this basis in our analysis, reliance on clerks may be an important area for future analysis of how courts decide which cases to hear.
-  Judiciary Amendment Act (No. 2) 1984 (Cth) s. 3(1) [Australia]; Supreme Court Act 2003(NZ), 2003, s 13; Black & Boyd, “Selecting," supra note 3 at 1124-1126.
-  Although most high courts exclusively hear appeals (or, in some cases, resolve disputesor questions referred to them by the government), some common law countries, includingIndia, Israel, and South Africa, and civil law countries, such as Germany, allow members ofthe public to submit applications directly to the high court: Brice Dickson, Judicial Activismin Common Law Supreme Courts (New York: Oxford University Press, 2007) at 7 [Dickson,Judicial Activism]. These public petitions are often permitted in cases regarding the enforcement of constitutional rights, or judicial review of government actions.
-  Courts Law 1984 (Consolidated version), s 41(a).
-  Benjamin Alarie & Andrew James Green, “Docket Control at the Supreme Court ofCanada: What’s Behind the Screen?" (July 21, 2014) [unpublished] online: https://ssrn.com/abstract=2469326 [Alarie & Green, “Docket Control"].
-  See e.g. Brice Dickson, “The Processing of Appeals in the House of Lords" (2007) 123:4Law Quarterly Review 571-601 [Dickson, “Processing"]; “A Guide to Bringing a Case to theSupreme Court," online: https://www.supremecourt.uk/docs/a-guide-to-bringing-a-case-to-the-supreme-court.pdf; Kaitlyn L. Sill & Stacia Haynie, “Panel Assignment in Appellate
-  Abhinav Chandrachud, “From Hyderbad to Harvard: How u.S. Law Schools Make Clerkingon India’s Supreme Court Worthwhile” (2014) HLS Program on the Legal Profession ResearchPaper at 24, online: http://ssrn.com/abstract=2413576 [Chandrachud, “Hyderbad”]).
-  Jonathan Horton, “Justices’ Associates: Some Observations” (2002) 22:1 University ofQueensland Law Journal 114 at 120 [Horton].