Comments on: The UK Supreme Court: a coda

By: UKSC Blog on the Blogs, Part 3 [updated] « UKSC blog

UKSC Blog on the Blogs, Part 3 [updated] « UKSC blog — Tue, 23 Mar 2010 18:40:57 +0000

[...] US Concurring Opinions blog discusses the vacancy for the 12th Justice and what the author sees as the odd practice of the [...]

By: Commentary from across the Atlantic « UKSC blog

Commentary from across the Atlantic « UKSC blog — Tue, 23 Mar 2010 18:38:18 +0000

[...] it is all worthwhile (before happily concluding that it is much ado, and not nothing). Concurring Opinions report on the possible candidates for the Twelfth Justice. But it also seems there is [...]

By: Monday Round-up | SCOTUSblog

Monday Round-up | SCOTUSblog — Mon, 19 Oct 2009 14:54:20 +0000

[...] and Justices Scalia and Breyer cancelled their planned Friday session to travel to London. At Concurring Opinions, John Ip also discusses the opening of the new Court, examining in particular the possible nominees [...]

By: John Ip

John Ip — Sun, 18 Oct 2009 20:57:55 +0000

These are both useful comments. TJ: certainly there is no avoiding the “if only Justice X had been sitting on this case” issue if one takes retirement into account. I think there is something desirable about having advocates not simply gun for the vote of one Justice, as seems to have been the practice in the US with Justice O’Connor and now perhaps Justice Kennedy. But I think this does depend on precisely how the panels are to be selected, which is not entirely clear.

Peter: thanks for the correction. I followed your example and had a look at the statute constituting the NZ Supreme Court. It provides for the Chief Justice and four to five other Justices (s 17). So it seems that theoretically (although not at present) there can be up to six members of the New Zealand Supreme Court.

By: Peter McCormick

Peter McCormick — Sat, 17 Oct 2009 21:45:28 +0000

Although the UKSC blog says that the Supreme Court of Canada has a rule of sitting as a full court, this is not correct. Under their constituting statute, they are required to sit with a minimum panel of five judges, and since odd-size panels are preferable for obvious reasons, this means that there can be five-judge panels, seven judges panels, and nine-judge panels. Longstanding practice suggests that a seven judge panel is the default rule; five judge panels are used for more routine matters (such as the “appeals by right” that still make up about one sixth of the caseload); and nine judge (full court) panels are used for more serious cases. The falling caseload this century has coincided with a rising average size of panel; leaving out the most recent term (when there was an unfilled vacancy for most of the fall)and looking instead at 2007-8, the Court sat 44 nine-judge panels, 18 seven judge panels, and 1 five-judge panel. How big the panel should be, and who should sit if it is less than nine, is up to the Chief Justice.

By: TJ

TJ — Sat, 17 Oct 2009 09:20:10 +0000

I’m not sure that the “would the result be different had Justice X been sitting?” question can be avoided. Witness the parlor game of whether results in various cases would have been different had Justice O’Connor still been on the bench. Is this any different?

Moreover, there is one great benefit (at least, I think of it as a benefit) to having random panels. Since the lawyers don’t know what the panel is going to look like when writing briefs, they cannot tailor arguments to peel off the median justice. Thus, instead of everyone gunning for Justice Kennedy’s vote–creating a situation where a Kennedy concurrence or dissent is worth more than a 9-0 opinion–you get arguments that involve law in a sense that differs from simply appealing to the views of one person.