The UK Supreme Court: a coda

Two further matters regarding the UK Supreme Court. The first concerns the vacancy for the 12th spot on the Supreme Court. According to the Ministry of Justice, vacancies are filled by a selection commission, comprising of  ‘the President and Deputy President of the Supreme Court . . .  and members of the appointment bodies for England, Wales, Scotland and Northern Ireland.’

One of the apparent favourites to fill the recently advertised vacancy is Jonathan Sumption, QC. (Aside: wouldn’t it be neat to write your own Supreme Court vacancy? “Wanted: Supreme Court Justice. Must be steeped in legal learning, have gravitas, and be able to get along with others steeped in legal learning and possessing gravitas. Serious brainpower desirable; advocacy experience a must, judicial experience preferred.”) It is Jonathan Sumption QC’s judicial (in)experience that is causing controversy. There is no doubt he is a top advocate, and he apparently doubles as a medieval historian. Intellectual chops is not the issue. But he has never served as a judge, and his potential elevation to the Supreme Court would have him leapfrog judges of the Court of Appeal (and for that matter, the judges below that court as well). Some Court of Appeal judges have reportedly expressed some displeasure at this.

There seem to be two different arguments here. The first is that one should in a sense pay one’s dues out of respect for those more senior. That doesn’t strike me as a particularly good argument, and I don’t imagine readers enculturated in the US system of judicial appointments would feel differently. The second claim, that it would be useful for even the most gifted legal mind to gain some judicial experience before heading to the Supreme Court, strikes me as the better argument.

And now for the second item concerning the UK Supreme Court: The UKSC Blog has an interesting item on the size and composition of the Court. It appears that the Court may sit in various odd numbered configurations. This seems a little odd to me, although there is certainly historical precedent for this with the House of Lords. I think there is a lot of sense in having the same set of judges on a top court. This avoids questions about A-teams and B-teams, and whether one would have won the case if Justice X had been sitting in place of Justice Y.

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6 Responses

  1. TJ says:

    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.

  2. Peter McCormick says:

    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.

    • John Ip says:

      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.