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The politics of panel systems: political insurance and the organization of high courts

Abstract

A long tradition in political science holds that political institutions are designed for the benefit of the politicians who create them. Prominent among explanations for the creation and maintenance of effective judiciaries is the political insurance theory, which predicts higher levels of judicial independence where there is robust political competition. In this article, I consider the implications of political insurance theory for one of the most consequential organizational decisions for courts, the provision of panels or subsets of judges for rendering decisions. Identifying the ability of panels to provide political insurance, I contend that higher levels of political competition motivate the creation of panel systems in national high courts. An empirical analysis using an original dataset on the organic statutes of 106 high courts reveals a positive relationship between political competition and the use of panel systems, while further analysis shows that this relationship is limited to democracies.

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Notes

  1. Some courts refer to these subsets as chambers, but to avoid confusion I use panels here.

  2. The Italian Constitutional Court, for example, explicitly cites the use of plenary sessions for decision-making as allowing “case law to develop more coherently than if it were subdivided into panels” (The Italian Constitutional Court N.d., 41).

  3. Judicial review can alternatively serve the immediate interests of a government by, for example, providing policy-makers with informational benefits (Rogers 2001) or the ability to overcome gridlock in the normal legislative process (Whittington 2005). In such instances, the court is not viewed as a constraint on the majority but rather as a tool for improving the quality of policy-making.

  4. The hegemonic preservation theory proposed by Hirschl (2000) similarly focuses on the value of independent courts to majorities facing political defeat. Helmke and Rosenbluth (2009) and Vanberg (2015) provide extended reviews of the judicial independence literature.

  5. International courts like the Court of Justice of the European Union are often similarly regulated by treaties and subsequent statutes defining their organization and configuration when adjudicating disputes.

  6. See “Appendix” for examples of statutes.

  7. Such a high caseload is not uncommon among many constitutional courts. The German Constitutional Court, for example, received nearly 6000 new cases in 2018 alone, while the Austrian Constitutional Court received over 5600. Similarly, the Spanish Constitutional Court took in nearly 7000 cases that year.

  8. The identity of the relevant court depends on the structure of the judiciary. Most commonly, it is a supreme court that has general jurisdiction or a specialized constitutional court or tribunal. A list of countries included is provided in the “Appendix” along with descriptive statistics.

  9. This is based on the original version of organic statutes, i.e., does not account for revisions made after the initial statute’s passage.

  10. This includes panels of supreme courts given exclusive constitutional review power.

  11. See “Appendix” for robustness analyses, including alternative model specifications and the inclusion of regional fixed effects.

  12. Based on Model 2.

  13. The figure is bounded on the x-axis at 0.5 due to the presence of few observations in the data of democracies with lower levels of political competition.

  14. A shift across the interquartile range produces a similar increase in the probability of a panel system (38–62%).

  15. Countries whose high court has a panel system are bolded.

  16. Given their ties with the UK and the West, Australia and New Zealand are grouped with European countries.

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Appendix for “The politics of panel systems: political insurance and the organization of high courts”

Appendix for “The politics of panel systems: political insurance and the organization of high courts”

Examples of Statutes

Act on the Federal Constitutional Court (Germany) Section 2, Para 1: The Federal Constitutional Court shall consist of two Senates.

Constitutional Court Act (Austria) Section 6, Para 1: For each hearing of the Constitutional Court, the Vice-President and all other members are to be invited.

Constitutional Court Act (South Korea) Article 72 Para 1: The President of the Constitutional Court may establish the Panels each of which consists of three Justices in the Constitutional Court and have a Panel take a prior review of a constitutional complaint.

Organic Law of the Constitutional Court (Benin) Article 27: The assessment of conformity with the Constitution is made on the report a member of the Court within the time limits laid down in Articles 120, 121 and 122 of the Constitution. The decision is taken by the Court sitting in plenary session.

Supreme Court Act of 2003 (New Zealand) Article 27, Para 1: For the pur- poses of the hearing and determination of a proceeding, the Supreme Court comprises 5 Judges of the Court.

Constitutional Court Law (Latvia) Section 25, Article 2: Matters not specified in Paragraph one of this Section shall be adjudicated by a composition of three judges if the Constitutional Court has not decided otherwise.

List of countries and elections in datasetFootnote 15

Albania Georgia Nigeria
Algeria Germany Norway
Andorra Ghana Panama
Angola Greece Paraguay
Argentina Guatemala Peru
Armenia Haiti Philippines
Australia Honduras Poland
Austria Hungary Portugal
Azerbaijan Iceland Romania
Belarus India Russia
Belgium Indonesia Sao Tome and Principe
Benin Ireland Senegal
Bolivia Israel Serbia
Bosnia-Herzegovina Italy Seychelles
Botswana Ivory Coast Slovakia
Brazil Japan Slovenia
Bulgaria Kazakhstan South Africa
Burkina-Faso Kenya Spain
Burundi Korea Sri Lanka
Cambodia Kosovo Sweden
Cameroon Kyrgyz Republic Switzerland
Canada Latvia Taiwan
Cape Verde Liberia Tajikistan
Chad Liechtenstein Thailand
Chile Lithuania Turkey
Colombia Luxembourg Ukraine
Costa Rica Macedonia United Kingdom
Croatia Madagascar United States
Czech Republic Malawi Uruguay
Denmark Malta Venezuela
Djibouti Mexico  
Dominican Republic Moldova  
Ecuador Mongolia  
El Salvador Montenegro  
Estonia Morocco  
Finland Namibia  
France New Zealand  
Gabon Niger  

Descriptive statistics

See Table 2.

Table 2 Descriptive statistics

Robustness analysis: logistic regressions

See Table 3.

Table 3 Replications of Models 1–4 with logistic regressions

Table 4 provides results of linear probability models using model excluding observations for which Political Competition is below 0.5.

Table 4 Replications of Models 1 and 2 without low political competition observations

Table 5 provides results of linear probability models that include regional fixed effects to account for potential diffusion dynamics. Countries are assigned to one of five region: Europe, Asia, Africa, South America, and Central/North America.Footnote 16

Table 5 Linear probability models with regional fixed effects

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Krehbiel, J. The politics of panel systems: political insurance and the organization of high courts. Eur Polit Sci (2022). https://doi.org/10.1057/s41304-022-00379-5

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Keywords

  • Judicial politics
  • Judicial independence
  • Political insurance