Brian Christopher Jones: Panel Numbers: From ‘Court Packing’ to ‘Institution Building’

In 1937 American President Franklin Delano Roosevelt (FDR), frustrated by his New Deal legislation being struck down by the Supreme Court, introduced the Judicial Procedures Reform Bill, or ‘court-packing plan’, which would have allowed him to increase the size of the Supreme Court under certain conditions. This was largely perceived as a move to rebalance the ideological centre of the Court, resulting in a more favourable approach to his flagship legislative programme. Under intense criticism, the idea was eventually abandoned. Nevertheless, FDR eventually got to shape the Court, and much of his signature New Deal legislation was affirmed.

Although FDR’s court packing plan concerned the merits of lifetime tenure for judges, a variation on court packing is now occurring in many apex courts: the increase of panel numbers for especially prominent constitutional or human rights cases (after all, the Grand Chamber of the European Court of Human Rights now sits with 17 judges). These types of developments do represent a break from the past, and fit more within an ‘institution building’ context, as opposed to the charged ideological context associated with court packing. Nevertheless, such changes do bring forward some significant questions as to how and why this practice is occurring. Within the UK context, the Supreme Court’s recent decision in the prorogation cases to alter their panel number from nine justices to eleven, just days before the hearing was due to take place, also presents issues.

The increase in panel size from nine to eleven came with little official notice from the Court itself and no explanation as to why it was increased. It is curious, however, as the case had been set at nine. An excellent piece by Tomlinson, Rylatt and Fairgreive before the Miller I case argues that the UKSC having an eleven judge panel was unprecedented but also fits with the norms established by the Court for increased panel sizes. But there are significant questions as to what the current move from nine to eleven achieved in practical terms. Whilst the UKSC’s panel numbers criteria explicitly states that panel numbers above five could be used for cases of ‘high constitutional importance’ or ‘great public importance’, this does not necessarily explain the change. This post discusses what possible motives the Court may have had behind the move.

The first, and probably most likely, motive was having two additional and highly qualified legal minds lend their wisdom to the proceedings. Given the stakes of the hearing, this is without a doubt an appropriate move by the Court. The inclusion of two more justices who could ask questions of counsel, assist in reading and making sense of authorities, and ultimately help the Court come to a wise decision on the matter is completely reasonable and appropriate. But if this was the rationale behind the move, then it is somewhat puzzling that the Court never fully justified the decision to increase the panel size.

Another motive may be that the Court could better protect itself from allegations of bias. If the Court only sat nine, critics could assert that the panel had been ‘hand-picked’ to deliver a particular decision, and that the decision would have been different had certain other judges been sitting. From an ‘institutional building’ perspective, it is also beneficial for a relatively young Supreme Court to be seen to be doing everything they can in relation to the matter. Sitting only nine judges, whilst Miller I sat eleven, may have given the impression that the case was not as important. The Court looking to protect itself in this manner and increasing the number of judges to eleven virtually eliminates any accusations from either side that the outcome would have been distinctly different if a particular justice was sitting.

Another motive may have been to flag up the importance of the case. This is also a reasonable justification, although perhaps less reasonable than the two above justifications. Yes, the case is important and people should be paying attention; some of them may even do so because they have heard about the change from nine to eleven justices hearing the case. However, sitting nine judges as opposed to the usual five or seven already demonstrates that the case contains significant constitutional and public importance. In fact, a nine-member panel is more than that which sat on the Scottish Continuity Bill case, and also on the Northern Ireland abortion case, two matters of substantial importance. Nonetheless, given the prorogation’s constitutional significance, there are good reasons for flagging up the importance of the case.

Finally, the Court may have made the change in the hopes of providing itself more democratic legitimacy when rendering any decision they come to. After all, a move from nine to eleven may sound insignificant to legal scholars, but it could very well resonate with the general public. However, if democratic legitimacy was the rationale behind the Court’s increase from a nine-member panel to an eleven-member panel, then this is certainly the most questionable decision for the change. Apex courts are no substitute for democratically elected legislatures, no matter how hard they try to be.

Ultimately the Court’s decision to increase its panel size may have been affected by all the above justifications, but most likely centred on practical matters and institutional building.

Some questions, however, remain unanswered. Note the Guardian and BBC explanations about the fact that Lord Briggs—the only Justice not sitting on the panel—was a commercial law expert. So too are Lord Kitchen and Lord Hodge; and as brilliantly accomplished as they are, neither bring any specialised public law knowledge to the proceedings. And yet, they were allowed to sit on the panel, and Lord Briggs was excluded. But more generally, whilst statute currently precludes sitting all twelve Justices, should we not question whether having an even number may be appropriate in particular circumstances? After all, the current issue before the court divides the electorate, divides Parliament, and also divides senior judges throughout the UK, as we have seen at the High Court and the Court of Session.

There is also a noticeable irony regarding the increase in panel size for this case. If we desire transparency from our political leaders about their important procedural decisions (e.g., proroguing Parliament), then should we not expect the same from our Supreme Court?

I would like to thank Colin Reid and Joe Tomlinson for providing comments on an earlier draft of this post.

Brian Christopher Jones is a Lecturer in Law at University of Dundee.

(Suggested citation: B.C. Jones: ‘Panel Numbers: From “Court Packing” to “Institution Building”‘, U.K. Const. L. Blog (19th Sept. 2019) (available at https://ukconstitutionallaw.org/))