Panel Assignment in Appellate Courts: Strategic Behaviour in the South African Supreme Court of Appeal

Abstract

Numerous studies on judges in various countries have found that judges behave strategically in order to obtain politically favourable case outcomes. In this study, we examine whether chief justices of the South African Supreme Court of Appeal1 Prior to the 1994 democratic dispensation the court was known as the Appellate Division and was the titular head of the judicial hierarchy. Under the new constitution, the newly formed Constitutional Court now sits at the apex of the judiciary. For consistency we will refer to the court as the Supreme Court of Appeal despite the 31-year timeframe of our analysis. strategically assign judges to panels to maximize the political favourability of case outcomes. We confirm what other South African scholars have found, that chief justices do strategically make panel assignments. More critically, our analysis shows that they take into account the cumulative composition of the final panel rather than solely considering the individual judges. Specifically, we find that chief justices attempt to make panel assignments in order to maximize the ideological proximity of a minimum winning coalition on the panel, especially in highly salient cases. We assert that by strategically appointing the panels, the chief increases the likelihood that the minimum number of judges necessary will vote in his preferred direction. Thus, we provide further evidence that judges engage in strategic behaviour during the decision-making process.

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