A COURT OF SPECIALISTS JUDICIAL BEHAVIOR ON THE UK SUPREME COURT by Chris Hanretty. New York: Oxford University Press, 2020. 320pp. Hardcover $105.00. ISBN: 9780197509234.
Reviewed by Jennifer Bowie and Alexis Cobbs, Department of Political Science, University of Richmond. Emails: jbowie@richmond.edu and lexi.cobbs@richmond.edu.
A COURT OF SPECIALISTS JUDICIAL BEHAVIOR ON THE UK SUPREME COURT by Chris Hanretty provides one of the most comprehensive and rich analyses of the UK Supreme Court’s decision making. A COURT OF SPECIALISTS investigates various aspects of the UK Supreme Court decision making processes such as case selection, panel makeup and size, opinion authorship, and panel dissensus. Central to Hanretty’s argument is that the UK Supreme Court is a court of specialists, particularly when compared to other courts of last resort around the world; understanding the Court’s behavior must be done through this lens (p. 2). He suggests that “the bulk of its work in any given case is carried out by area specialists: individuals who have given over a substantial part of their career to tax law, family law, criminal law, or public law” (p. 2). Overall, A COURT OF SPECIALISTS is compelling, thorough, and offers new insights to the UK Supreme Court, and comparative courts more generally. Additionally, as Hanretty alludes, this is one of the first books to empirically examine judicial behavior on the UK Supreme Court (pp. 25-28).
Chapter 1 provides a descriptive overview of the UK Supreme Court and explains the Court’s role within the UK legal system. Hanretty spells out the organizational structure and staffing of the Supreme Court. In addition to providing readers with a basic overview of the UK Supreme Court’s organization, this chapter introduces readers to the book’s core argument that the UK Supreme Court is a court of specialists. In Chapter 2, Hanretty puts forth three main theoretical approaches to understanding judicial behavior in the UK: legal, organizational, and political. Hanretty makes a case on how these factors could influence the behavior of UK justices. For example, Hanretty suggests three legal factors that are useful to understanding justice behavior in the UK: the opinion below, area of law, and justice specialization. Likewise, Hanretty suggests that workload and case importance matter when understanding organizational factors. In addition, Hanretty also suggests that political influences can be best understood by examining agreement between justices and actor types (referring to litigant categories). While this chapter does not break any new theoretical ground, it does set the stage for how Hanretty analyzes the research questions covered in the book.
In Chapter 3, Hanretty examines how the Court sets its agenda—in other words, who gets heard. Hanretty provides a helpful primer on how case selection works in the UK. Generally, permission is required to appeal a case to the UK Supreme Court. In most instances, the Supreme Court is the body to grant permission; however, on rare occasions, permission may also be granted by the UK Court of Appeals (Note: The book details additional important nuances that are court and country specific. Scotland, for example follows a different process from England and Wales and Northern Ireland). Hanretty presents three models (legal, organizational, and political) of case selection. In the legal model of case selection, Hanretty finds that case importance positively influences the likelihood of Supreme Court review, as well as the opinion below. At the same time, the area of law is not statistically significant. Turning to the organizational model, Hanretty finds inconsistent evidence that workload influences the cases that the Supreme Court hears. More interestingly, Hanretty also finds that justices “do not shape the court’s docket so as to favor their own area of expertise” (p. 76). The political model shows that government litigants are more successful in permission to appeal applications than other litigant types (in the combined model, Hanretty finds similar results to the individual models).
In Chapter 4, Hanretty examines the influences of panel size and why it can differ from case to case. Unlike the US Supreme Court, the UK Supreme Court does not sit en banc. Instead, justices typically sit in panels of five, seven, or nine (p. 88). Five judge panels are the most common panel size for the UK Supreme Court. For instance, Hanretty finds that approximately 80% of the cases decided by the UK Supreme Court are decided by panels of five justices, thus raising the central question in Chapter 4: what factors lead to larger panels? For guidance, one can look to the Supreme Court’s rules that govern panel size (known as the Panel Number Criteria) which addresses when more than a panel of five should be set (for example, in cases of high constitutional importance or great public importance, among other reasons) (p. 87). Again, Hanretty looks at the legal, organizational, and political factors as a way to explain out panel size in each case. Case importance positively influences larger panel size; however, Hanretty finds mixed results on the idea that disagreement in the decision below influences larger panels.
Chapter 5 explores panel formation and represents the book’s more significant and novel contribution of how specialization influences decision making. The author notes that there has been speculation, even by members of the Supreme Court, on whether case outcomes are a function of panel make-up. For instance, Lord Phillips, the first President of the UK Supreme Court, stated, “If you sit five out of the twelve justices, and you reach the decision three-two, it’s very obvious that if you had a different five, you might have reached decision two-three, the other way” (p. 109). Another justice, Lord Neuberger (also a former President of the Supreme Court) commented, “Because we select panels, we can ensure that a panel of five (or more) hearing a case includes any Justice with special expertise in the relevant law, and that there will also be Justices who can bring their more general legal knowledge and experience to bear on the case” (p.110). Building upon justice statements regarding panel make-up, Hanretty analyzes three main questions: (1) whether presiding justices choose like-minded justices (he finds they do not); (2) whether presiding justices assign cases equitably (he finds they do not); and (3) whether presiding justices consider justice specialization when choosing justices. Empirically, Hanretty shows that specialization has a significant impact on panel formation, and this effect is significant for both low and high importance cases, but the effect is more prominent in high importance cases. This is a crucial and significant finding when one considers the type of influence a justice with specialization can wield in the decision-making process.
Chapters 6 and 7 discuss who writes opinions and who dissents. Hanretty analyzes the two questions through the legal, organizational, and political models in an attempt to discern which factors are the most impactful in determining who writes and who dissents. Focusing on substantive opinions, which encompasses all lead opinions, Hanretty finds that legal factors, specifically specialization, are the best determinants in who writes a lead opinion. The chance of writing an opinion moves from about a 20% chance to almost double that when specialization is added into the equation. Interestingly, this pattern applies across many areas of law and is consistent across both lead and substantive opinions. While specialization also impacts who dissents, the size of the panel had the most substantial effect. Hanretty points out that dissents are relatively rare in the UK compared to other legal systems, so it is more difficult to analyze with the same three models as with lead opinions. Instead, Hanretty suggests the more appropriate way to approach dissents is to consider the factors that “allow initial disagreement to persist” (p. 191).
Chapter 8 analyzes political patterns of dissenting behavior. Theoretically, in this chapter, Hanretty suggests there are three ways in which we can deduce justice preferences: (1) from the content of their preferences; (2) from the case outcomes justices reach; and (3) from dissenting behavior. Focusing on the latter, Hanretty puts dissenting behavior on a unidimensional scale, ranging from left-leaning to right-leaning outcomes. Outcomes are coded by area of law and litigant identity and applied to twenty judges who were assigned to as either activist, restrained, or moderate. Because such a small sample size made it difficult to ascertain a preferred interpretation of the data, Hanretty turned to case studies to search for patterns and provide additional context. Although Hanretty finds that a left-right interpretation is the best way to discern dissenting behavior, he also suggests that because non-unanimous decisions are rare in the UK, such a claim cannot be generalized.
Chapter 9 examines who wins in UK court cases, aiming to “make after-the-fact predictions about past Supreme Court cases” and identify the most likely winner based on legal factors, factors relating to resources, and factors relating to politics (p. 240). For Hanretty, if the Supreme Court allows the appeal, the appellant wins, and if the Court dismisses the appeal the Respondent wins (p.240). If the Court neither allows the appeal nor dismisses, no one wins and no one loses. After empirically examining who wins Hanretty finds that of all the factors, the legal ones were the most important. Additionally, the opinion of the lower court was the single most important predictor of the Appellant winning: if the Appellant won below, they were more likely to win at the Supreme Court.
A COURT OF SPECIALISTS is an important and novel book that students and scholars of judicial decision making should read. We believe Hanretty’s book would make a great addition to both undergraduate and graduate courses that focus on judicial behavior, decision making, and comparative courts. Specifically, the book did an excellent job synthesizing a large amount of research and empirical analyses in an understandable manner while maintaining its integrity and thoroughness, which is certainly a strength for a book on an undergraduate or graduate syllabus! The book's particular strengths include the vignettes at the beginning of each chapter and how understanding specialization is central to decision making on the UK Supreme Court. If there is a criticism of the book, it would be that the main hook of the book – that the UK Supreme Court is a court of specialists – seemed to play less of a role in some of the chapters. The chapters that did fully engage head on, with the specialist argument (specifically Chapters 3, 5, and 6) were the most fascinating and represented the book's most significant contribution. But, this is a minor critique of an otherwise outstanding book on the UK Supreme Court. In short, A COURT OF SPECIALISTS is a must read for scholars researching common law courts and the UK Supreme Court more specifically.
© Copyright 2022 by, Jennifer Bowie and Alexis Cobbs.
