Judicial Decisionmaking and the Use of Panels in the Canadian Supreme Court and the South African Appellate Division

Abstract

Research on the U.S. Supreme Court suggests that judges' decisions are influenced by their policy preferences. Moreover, judges behave strategically to facilitate outcomes that conform as close as possible to those preferences. We seek to generalize this assertion to judicial actors in two very diverse social systems: Canada in the post‐Charter years and apartheid‐era South Africa. Specifically, we analyze the use of panel assignments by the chief justices in both countries. We find that chief justices do behave strategically. Chief justices in both countries do not assign judges to panels randomly but rather are influenced by the tenure and ideology of the sitting judges and the issues presented in the case.

Strategic Leadership and Political Change on the Canadian Supreme Court: Analyzing the Transition to Chief Justice

“…Moreover, larger panels are likely to produce greater conflict between the justices and thus will feature greater dissent activ-ity. Recent scholarship suggests that there is a trend toward larger size panels in the modern Court, particularly when it comes to high-profile cases~Greene et McCormick, 1992;Hausegger and Haynie, 2003!. Given this trend toward increasing panel size, it is imperative to control for this potential influence, and we did this by calculating the mean panel size each year.…”

“…Given this trend toward increasing panel size, it is imperative to control for this potential influence, and we did this by calculating the mean panel size each year. Despite the fact that salience of disputes is often difficult to measure, we believe that Charter litigation constitutes a viable surrogate for this variable, given the high profile and social importance of these constitutional disputes~see Hausegger and Haynie, 2003!. It is hypothesized that the more Charter cases heard in a given year, the greater the likelihood that conflict and dissent activity will emerge on the Court. A corollary to this argument is that justices will have a greater desire to pen the majority opinion in such cases, because of the lasting significance such rulings will have for the development of legal doctrine in new areas of law.…”

“…and Schubert 1965Schubert , 1974! spawned a cottage industry of work assessing the validity of the attitudinal model across a wide range of US courts and the Canadian Supreme Court~for representative examples, see Spaeth, 1993, 2002;Epstein and Knight, 1998;Baum, 1988Baum, , 1992Fouts, 1969;Peck, 1967aPeck, , 1967bPeck, , 1969Tate and Sittiwong, 1989;Russell, 1995;Epp, 1996;Flemming andKurtz, 2002a, 2002b;Ostberg et al, 2002;Hausegger and Haynie, 2003;Flemming, 2004!. These studies have collectively provided overwhelming evidence of the centrality of the attitudinal model in the judicial decision-making process of US courts and the Canadian high court.…”

Getting a Poor Return

“…established the median justice as pivotal in calculating court preferences (Hausegger and Haynie, 2003;Martin et al, 2004). The median justice is crucial on multi-member appellate courts where every justice has a vote with a majority decision determining the outcome.…”

Collegial Influence and Judicial Voting Change: The Effect of Membership Change on U.S. Supreme Court Justices

“…His finding does not, however, rule out the possibility of strategic behavior at the merits stage. Given that Hausegger and Haynie find that the chief justices of the Supreme Court of Canada and the Appellate Division of the Supreme Court of the Republic of South Africa strategically assign justices who are ideologically closer to them to hear cases that involve politically salient issues (2003:655), one might expect strategic behavior by the justices on the panels as well.…”