Panel Formation

This chapter looks at the identity of the judges chosen to hear each case. The Supreme Court is unlike other courts: it does not sit en banc, and the five-, seven-, or nine-judge panels are not chosen randomly, but are drawn up by court officials working together with senior judges. This chapter looks at explanations of how these panels are chosen. The key finding is that specialists in the relevant area of law are prohibitive favorites to be chosen to hear cases in those areas of law—and this effect is stronger the more important the case is. There is no evidence of political factors playing a role—if anything, judges who agree with senior judges are less likely to be picked for important cases.

Conclusions: Specialism and the Primacy of the Legal

This final chapter draws out some of the key messages of the book—how the behavior of judges on the Supreme Court can be best characterized using legal factors; and that among these, specialization in areas of law plays a key role. A review of the different models presented in the book shows that legal factors predominate when explaining the initial selection of cases, the size of the panel, the identity of the lead opinion author(s), and the final outcome. The conclusion identifies the key findings for different audiences, and sets out directions for future research on judges in common law systems.

Political Patterns of Dissent

This chapter—the longest in the book—tackles the issue of whether the judges of the Supreme Court disagree on political grounds. The chapter reviews a number of methods for analyzing disagreement, before describing a model that assigns judges positions on a spectrum, so that judges who are further apart are less likely to agree in non-unanimous cases. The results of that model show that there is a divide that characterizes the court; that Baroness Hale and Lord Kerr are at one hand, and Lords Brown, Rodger, and Sumption at the other end; and that this divide can be characterized as a left-right divide. Most of the chapter is spent describing the particular cases that divided these groups of judges, and arguing for the importance of viewing these cases through the lens of left and right.

Who Dissents?

This chapter looks at rates of dissent on the court—occasions where one or more judges disagrees with the outcome proposed by a majority of the court. Although this definition of dissent isn’t the only definition (some authors like also to focus on disagreement concerning the reasoning), it is the most tractable, and is used here. The explanation of dissent given in this chapter turns out to be deceptively simple. First, judges are more likely to dissent if they are sitting on a case with more judges. This gives them more opportunity to disagree, and they take it: nine-judge panels are much more likely to feature dissent than are five-judge panels. Second, judges are more likely to dissent if there are other specialists on the panel. If there are no other specialists, then specialists judges will end up writing the lead opinion, and face little disagreement. With multiple specialists, however, the possibilities for informed disagreement grow.

Who Writes?

When half of all of the cases decided by the Supreme Court have a single substantive opinion, it matters a great deal who writes that lead opinion. This chapter looks at lead opinion authorship. It finds that specialization in the relevant area of law is the single most important factor, but that this effect is dampened down in more important cases. Judges with greater workloads are slightly less likely to write lead opinions. In the most important cases, small-p politics does matters: judges who have in the past agreed more with other judges are more likely to write the lead opinion

Who Wins?

This chapter looks at whether appellants succeed before the Supreme Court. Around half of appellants succeed, and these rates of success vary by area of law and by the type of appellant. The strongest predictors of success, however, have to do with the route the case took to the court. Appellants are more likely to succeed if the Supreme Court itself granted permission to appeal (rather than having leave granted by the lower court), and if appellants were able to convince at least some judges in lower courts. Success is not wholly determined by what happens in lower courts, however: litigants who employ one additional senior lawyer are more likely to succeed.

Panel Size

This chapter explains the Supreme Court’s decisions to sit in panels of five, seven, or nine judges. The main findings are that the Supreme Court sits in larger panels in cases that involve the government; cases that involve human rights claims; and cases that are important, judged on the basis of the number of law reports that reported the decision that is being appealed. There is limited evidence to suggest that the Supreme Court sits in larger panels in cases where lower court judges have been divided. The key factors identified in this chapter thereforematch the Court’s own description of how it approaches panel size.

Key Concepts

This chapter sets the structure for the remainder of the book. The chapter sets out three categories of factors capable of explaining judicial behavior: legal factors, organizational factors, and political factors. The principal legal factors are “opinion below,” or the adjusted proportion of judges who have found for the appellant, and specialization. The main organizational factors are workload and case importance. The political factors are the rates of agreement between Supreme Court judges, and the types of litigants before the court and in particular whether governmental litigants are represented. This same division into legal, organizational, and political factors is used to structure the chapters that follow.

Introduction: The Supreme Court’s Place in UK Politics

This chapter introduces readers to the UK Supreme Court by describing two cases heard by the court: one case that almost no readers will have heard of, and that involved public access to land; and one case that was hugely controversial and that profoundly affected the process of the UK’s exit from the European Union. After describing the structure and operation of the court, the chapter steps back in time to explore the reasons for the court’s creation, and makes a case for the importance of understanding the court’s political role—and, as a consequence, for modeling the judges’ behaviors in ways that allow for subtle political influences alongside more consequential legal and organizational factors.

Who Gets Heard? Permission to Appeal Decisions

This chapter examines the “permission to appeal” (PTA) process at the Supreme Court. Each year more than two hundred litigants seek permission to appeal from the Supreme Court. Around one-third of these applications are successful. This chapter tries to explain rates of success. The key factors are the importance of the case the litigants are appealing, and the number of judges the appellants have convinced in lower courts. This matches the court’s own description of the cases it selects (“cases that raise arguable points of law of general importance”). However, the chapter also finds that governmental actors are more likely to gain permission to appeal even when controlling for importance and the balance of judicial opinion in lower courts.