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WHICH FACTORS MATTER?

Judges take into account a wide range of factors in deciding whether the court should hear an appeal—workload, signals of the importance of the appeal, and the judge’s view of the preferred outcome all seem to play a role. As we discussed earlier, these factors may all play a role but to a different extent depending on the appeal. All judges can agree that some cases must be heard whereas the vast majority clearly ought to be denied review; it is the middle category between these groups that sparks debate.[1] For petitions to the US Supreme Court with strong anti-grant or pro-grant factors, a judge’s ideology did not affect his decision on whether the Court should hear the appeal. Only for those petitions with few compelling reasons to either grant or deny a hearing (i.e., in the middle category) is there evidence of ideological voting.[2]

This mixed influence of factors is consistent with other studies. Cordray and Cordray, for example, found that justices on the US Supreme Court who voted together most frequently on the merits also tended to vote together on certiorari. However, the great majority of justices agreed with each other less often on certiorari votes than they did on the merits.[3] Of petitions granted certiorari unanimously, over a quarter resulted in 5-4 decisions on the merits, meaning that many of the justices probably voted to hear the case without being confident in advance of winning on the merits. Conversely, for petitions granted with just the minimum number of four cert votes, the Court was unanimous about one- third of the time on the merits. In these cases five of the justices voted against granting cert, even though they might have foreseen a high probability of being in the majority on the merits. Cordray and Cordray argue that it is unlikely that the justices simply misjudged their colleagues’ likely voting behavior in so many instances; they suggest, rather, that these differences between the vote on whether to hear the appeal and the decision on the merits indicate justices having a strong sense of the Court’s institutional responsibility to hear certain cases unrelated to their chances of success on the merits.[4]

Whether a judge will attend to different factors will depend on how the particular court is designed: how many judges a court has, whether it hears appeals in panels, and whether all judges are involved in deciding which appeals to hear. It is also related to how judges are appointed. How judges feel about their roles—whether it is permissible to consider their own views on the outcome, for example—and whether they can follow their own views will depend on who gets appointed to the court and how. Consider the US Supreme Court again. Owens and Simon argue that as justices on the Court become more ideologically dispersed, they will decide fewer cases. When justices hold divergent ideological interests—as on the current Court—they face challenges in achieving desired outcomes, which often results in “fractured relations, lethargy, and stalemate"[5] When justices are ideologically alike, the Court will grant cert to between 145 and 190 cases, but when the Court becomes ideologically divided, it will permit only 102 to 147 cases.[6] The justices are both less willing to agree on which cases to hear and potentially less able to predict the outcome on the merits. Justices on the Supreme Court of Canada may also face this difficulty with prediction, not only because the chief justice can vary who and how many judges sit on the merits decision, but because the justices are less clearly ideologically aligned than in the United States.

We will return to how judges perceive their role and relationship with other judges in Chapter 8 when we examine the role of norms on different high courts. Before we get there, however, there is one more key difference in the rules across high courts: who gets to argue appeals before the judges?

  • [1] Epstein et al., “Must Grants,” supra note 22 at 4.
  • [2] For such petitions, for example, if the court below reached a liberal decision, the predictedgrant probability for a very conservative justice was 67 percent; for an extreme liberal, the ratewas 58 percent. Epstein et al., “Must Grants,” supra note 22 at 18.
  • [3] Richard Cordray & Margaret Cordray, “Strategy in Supreme Court Case Selection: TheRelationship between Certiorari and the Merits” (2008) 69:1 Ohio State Law Journal 1 at 2-3[Cordray & Cordray, “Strategy”].
  • [4] Cordray & Cordray, “Strategy" supra note 108 at 28-29.
  • [5] Owens & Simon, supra note 31 at 1265.
  • [6] Owens & Simon, supra note 31 at 1277.
 
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