Academic journal article Law & Society Review

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

Academic journal article Law & Society Review

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

Article excerpt

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.

Studies of judicial decisionmaking over the last several decades have significantly increased our understanding of the behavior of the U.S. Supreme Court and the justices who compose it. In an attempt to increase our understanding of courts and of judging more broadly, there recently has been an emphasis on the expansion of comparative judicial research (Epstein 1999:1). Such an emphasis will allow scholars to develop truly generalizable theories of judicial decisionmaking that apply to courts beyond the borders of the United States. With this comparative focus in mind, we explore the primary assertions of previous research on appellate court behavior: Judges are affected by their policy preferences, and decisions are made that benefit those preferences. To test our assertions, we analyze the behavior of individuals in two appellate courts: the Supreme Court of Canada in the post-Charter years and the Appellate Division of the Supreme Court of the apartheid-era Republic of South Africa. More specifically, we focus on the behavior of the chief justices in panel assignments, exploring the role of tenure, issue, and ideology.

Interest in panel assignments in the United States has been primarily confined to studies of the federal courts of appeal (the only federal courts to hear cases in panels) during the desegregation era. Several studies of possible influences on these assignments discovered that while assignments were thought to be random in most courts, in the Fifth Circuit at least, the chief justice appeared to be influenced by his policy preferences when assigning justices (Atkins & Zavoina 1974; Barrow & Walker 1988; Howard 1981). Further, scholars have suggested that while policy preferences may not have an impact in all courts, the panel assignment process could still be classified as nonrandom since considerations of seniority and expertise may influence chief justices (Howard 1981).

Although work on panel assignments has been largely abandoned in recent years,1 research on the opinion assignments of U.S. Supreme Court chief justices can provide insight into possible influences on panel assignments as well. The opinion assignment literature has found differences among the chief justices. Thus, while Chief Justice Rehnquist has been found to consider workload factors most prominently (Maltzman & Wahlbeck 1996), earlier chief justices were found to consider their own policy preferences when making opinion assignments-those with similar preferences to the chief justice were more likely to be assigned an opinion (Segal & Spaeth 1993; Slotnick 1979a; Ulmer 1970). Other factors such as judicial expertise, efficiency, experience, and the importance of the case have also been suggested as possible influences by some of this literature (Brenner 1984; Maltzman & Wahlbeck 1996; Brenner and Hagle 1996; Slotnick 1979a). These factors inform our own study of panel assignments-the additional power held by chief justices in our countries of interest. Despite the decreased attention paid to the panel assignment decision in the United States in recent years, we believe this behavior has the potential to significantly affect the outcome of cases. Thus, the factors influencing the chief justice in his assignments need to be explored. …

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