How Would Judges Compose Judicial Panels? Theory and Evidence from the Supreme Court of Israel

• Author: Yehonatan Givati,Israel Rosenberg
• Date: 01 June 2020
• Published date: 01 June 2020
• DOI: http://doi.org/10.1111/jels.12247

Journal of Empirical Legal Studies

Volume 17, Issue 2, 317–341, June 2020

How Would Judges Compose Judicial

Panels? Theory and Evidence from the

Supreme Court of Israel

Yehonatan Givati*and Israel Rosenberg

How would judges compose judicial panels, if they could? We focus on a procedure in the

Supreme Court of Israel that allows each justice to compose three-justice panels, collecting

an original database of decisions in this procedure. The data reveal strong bias in justices’

panel composition. A Gini coefficient measuring the extent of inequality in each justice’s

panel composition, which runs between 0 (total equality) and 1 (total inequality), is 0.82

on average, which contradicts the random composition theory. The high variance in the

choice of panel members contradicts the professional composition theory. The data sup-

port the idea that justices compose panels strategically, and accordingly the data uncover

justices’ revealed preference for panel members. We use the data to depict the relation-

ships within the Supreme Court of Israel, and identify three groups of justices. Lastly, we

show that justices who were selected by the current Chief Justice under the above proce-

dure, before she became Chief Justice, are more likely to sit on panel with her in ordinary

hearings after she became Chief Justice. Since the Chief Justice has the legal authority to

compose ordinary panels, this is also consistent with strategic panel composition.

I. Introduction

Research has shown that judicial panel composition matters. For example, the presence

of a single female judge on a three-judge panel affects the outcome in sex discrimination

and sexual harassment cases (Perisie 2005; Farhang & Wawro 2004; Boyd et al. 2010).

The presence of one Democrat or one Republican on a three-judge panel affects the out-

come in politically salient cases (Revesz 1997; Cross & Tiller 1998; Sunstein et al. 2006),

and the presence of a single black judge on a three-judge panel affects the outcome in

*Address correspondence to Yehonatan Givati, Hebrew University Law School, Mt. Scopus, Jerusalem 91905, Israel,

email: givati@huji.ac.il. Givati is at Hebrew University Law School; Rosenberg is at Tel-Aviv University Law School.

We are grateful to the editor, and to three anonymous referees, for their helpful comments, which significantly

improved the article. We are also grateful to Adam Chilton, Marcel Kahan, Yotam Kaplan, Ehud Guttel, Yoram

Shachar, several former Israeli Supreme Court Clerks, and participants in workshops at Hebrew University Law

School, the Israeli Law and Economics Annual Meeting, and the American Law and Economics Annual Meeting at

NYU Law School, and to the Supreme Court of Israel, for comments on earlier drafts. We are also grateful to

Hebrew University’s Center for Empirical Legal Studies for financial support.

317

cases involving the Voting Rights Act and affirmative action programs (Cox & Miles 2008;

Kastellec 2013).

Given the effect of panel composition on case outcomes, the manner in which judi-

cial panels are composed is important. In the United States, federal courts of appeals typ-

ically hear cases in three-judge panels, which are randomly configured (Abramowicz &

Stearns 2005:1009; Epstein et al. 2011:110; Sunstein & Miles 2009:2197). Some have

called for reforming the current system, arguing that the assignment of judges to panels

should not be random (e.g., Hasday 2000; Meador 1983; Tiller & Cross 1999). Recently,

the strict randomness of panel composition has been questioned, though no improper

motives have been suggested (Chilton & Levy 2015; Levy 2017).

To evaluate the desirability of random composition of judicial panels one has to

consider alternative systems of panel composition. One such alternative system is allowing

judges to compose panels themselves. What if each judge could choose the two judges

who will join him or her to decide a case? How would judges compose panels, if they

could?

To investigate this question we focus on the Supreme Court of Israel. Among other

types of cases, the Supreme Court of Israel hears High Court of Justice cases. These are

cases filed against the government, where the Supreme Court of Israel serves as a court

of first instance. Hundreds of these cases are filed every year, and the way they are han-

dled is crucial for the purpose of this research.

Every week a different justice is assigned to be the Justice on Duty, and he or she

receives every High Court of Justice case that is filed that week. If, after reading the peti-

tion, and sometimes the government’s response, the Justice on Duty decides to reject the

case, he or she writes an opinion rejecting the case, and chooses two other justices to

whom the opinion is sent?. These two justices, together with the Justice on Duty, consti-

tute the official panel for the case. The Justice on Duty is free to choose any justices he

or she wants to make the panel of three justices, and therefore has the power to compose

the judicial panel for the case.

How does the Justice on Duty choos e which two justices to whom the opin ion is

sent? We develop three theories. Ac cording to the random selection theo ry, the Justice

on Duty chooses two justices randomly, so that from the petit ioner’s perspective there

will be similar probabilities of diffe rent panel compositions. Accordi ng to the profes-

sional selection theory, the Justi ce on Duty chooses two justices who are kn own as

experts in High Court of Justice cases, to make sure his or her decision to reject the case

is reviewed by experts in the relevan t area of law. According to the strategi c selection

theory, the Justice on Duty selects as panel members justices who are ve ry likely to agree

with his or her decision to reject the case. The se selected justices may be more likely to

agree because of ideological or per sonal reasons.

To test these theories we collect an original database of all the Supreme Court of

Israel decisions in High Court of Justice cases in which the Justice on Duty decided to

reject the case, and was therefore the one composing the panel. The time period we

focus on is January 21, 2015 until April 5, 2017, since it is the longest recent period dur-

ing which no retirements from, or appointments to, the Court took place. This is impor-

tant because we want to make sure that during the period of study each justice had the

318 Givati and Rosenberg