The Influence of the Parties on Judges. Accuracy or Affiliation?
We have seen that high courts differ across appointment processes, the use of panels, and how they choose cases to hear. Once a case is before a court and the panel is chosen, the judges must react to the facts of the case before them and the relevant law. They are also faced with the parties involved in the dispute— most obviously the appellants and the respondents. However, the judges may also hear from parties who want to join in the appeal to help one side or the other by providing a broader perspective or alternate viewpoint—such as an environmental group seeking to participate in an appeal in order to help the court understand the long-term implications of a broader or narrower interpretation of environmental legislation.
At first glance, judges appear to be influenced more by some parties than others. Take the litigants themselves—those who are appealing or responding to the appeal. It turns out that, among the different types of parties that might be involved in an appeal—such as the government, businesses, other groups (such as environmental groups) and individuals—t he government tends to win appeals more than other parties. Figure 7-1 shows the percentage of cases in which each group won at high courts (whether as appellant or respondent) in the period from 1970 to the early 2000s. In Canada, for example, the federal government won over 60 percent of appeals it was involved in compared to less than 40 percent for individuals.1 In the united States the government’s advantage was similar—with the federal government prevailing in 60 percent
1. Peter McCormick, Canada’s Courts (Toronto: J. Lorimer, 1994) at 164 has the government winning 62 percent of the time and individuals 44 percent of the time [McCormick, Canada’s Courts].
Commitment and Cooperation on High Courts. Benjamin Alarie and Andrew J. Green.
© Oxford University Press 2017. Published 2017 by Oxford University Press.
Figure 7-1 Percentage of Cases That the Party Wins, 1970 to early 2000s. These win rates are calculated by dividing the number of cases in which the group was successful by the total number of cases in which the group was involved on one side. These win rates exclude cases in which both the appellants and respondents are members of the group (for example, the win rate for individuals does not include cases in which both the appellants and respondents are individuals). government tends to have a high win rate relative to other parties and individuals a relatively low win rate, with Australia being an outlier in terms of individuals. source: High Courts Judicial Database.
Figure 7-2 Percent of cases with at least one intervener. We used a five-year rolling average of the number of cases with at least one intervener per year, in order to smooth out the trends. The proportion of cases with interveners increased in all countries during this period, though by the end of the period still only a small percentage of cases involved interveners in India and the uK. By the early 2000s, about 90 percent of cases before the uS Supreme Court involved at least one intervener. source: High Courts Judicial Database.
on the appeal. Figure 7-2 shows the tremendous rise in the number of cases where groups intervene who are not the direct parties. These parties are called different things in different countries—for example, interveners in Canada and amicus curiae in the united States. We will generally refer to them as interveners. Canada and the united States most freely allow interveners to participate and have seen the greatest increase, though by 2000 the proportion of cases with interveners in Canada only reached the level of the united States in the early 1960s. However, the number of interveners has gone up in all countries to some extent. Moreover, the number of interveners per case has gone up in most countries, as we can see in Figure 7-3. The question is whether judges are influenced by this flood of interveners, and if so, how?
Figure 7-3 Average number of interveners in cases with at least one intervener. We used a five-year rolling average of the number of interveners per case with at least one intervener, in order to smooth out the trends. The united States again led with the most interveners per case. Canada and Australia also saw large increases in the average number of interveners over the period.
These different parties may sway judges in various ways but two are central— accuracy and affiliation. A judge may be influenced in a particular direction by a party because she feels that party more likely leans toward the correct result—a more accurate outcome. She may believe that having a party she sees as credible on one side makes that side more likely to provide the better answer. A judge may have a good idea, for example, for how well reasoned decisions are from judges from her home province or state. Alternatively, she may be getting more or better information from certain parties, independent of her feelings about these parties.
A judge may, on the other hand, be pushed in a direction by certain parties because she feels an affiliation with those parties. She may, for example, share a taste for conservation values with an environmental group or for freedom from government influence with a libertarian group. She may lean in favor of an underdog such as a poor individual, regardless of the quality of the case or information coming from that party. She may be swayed by a connection with litigants she knows or who come from the same place.
Before we examine how judges take into account accuracy and affiliation in their dealings with different parties, we first need to lay out briefly how the different parties may be included in appeals on the various high courts.