"Judges Seeking Future Govt Appointments May Result In Indirect Political Influence":In Conversation With Prof William Hubbard

Santosh Paul, Advocate, Supreme Court interviewed Prof. William Hubbard of the University of Chicago, Editor of the Journal of Legal Studies, Kauffman Legal Research Fellow He authored "The Supreme Court of India: An Empirical Overview" and "The Unintended Consequences of Case by Case Rescue: An Empirical study of Supreme Court cases from 2010 to 2014"

WH. Let me begin by saying thank you for this opportunity to discuss my research with you. I'll be answering these questions based on my ongoing empirical research on the Supreme Court of India (SCI) with my co-authors, Aparna Chandra of NLU, Delhi, and Sital Kalantry of Cornell University in the United States.

SP: Why have you called the Indian Supreme Court the "most powerful court in the world"? How does it compare with the Supreme Court of the United States (SCOTUS) in terms of its powers?

WH: We aren't the first to make this observation, but the Supreme Court of India (SCI) holds a unique status for several reasons. It is the apex court of the largest common-law court system in the world. The Indian Constitution grants it far-reaching authority to initiate actions and to exercise direct appellate authority over all other courts in the country. The basic structure doctrine gives it the power to review constitutional amendments. These features distinguish it from other powerful Supreme Courts, such as the Supreme Court of the United States (SCOTUS). And the SCI remains a highly respected institution by the people of India (and beyond), giving it legitimacy when it exercises its broad powers.

SP: You have been extensively researching on the Indian Supreme Court.Are you able to easily get the data you require and is this data easily accessible?

WH: Court data is often a challenge to collect in any country. In some respects, however, information on the SCI is easily accessible. The SCI website contains publicly available information on every petition and appeal that it hears, and its opinions and judgments are available for download as well.

Nonetheless, there is a difference between information being freely available, and that information being usable as data for statistical analysis. For us, it is this second step that has been a tremendous challenge. We have used time-intensive hand-coding by research assistants, who have read the judgments of the SCI and recorded in database form many variables, such as date, prevailing party, and which justices heard the case. And we have also used automated methods of collecting information from the SCI website and transforming into a computerized database.

SP: What are the areas of research you are currently conducting on the Indian Supreme Court?

WH: We are looking at many questions right now. Has the collegium system changed? which kinds of lawyers or judges are appointed to the SCI? Which justices write the most opinions? Who is most likely to dissent? How influential are senior advocates? Does the Court appear to favor certain categories of litigants, such as the government, or the "underdog"? We are working on a book that will collect our findings on these and other questions. Our manuscript should be complete next year.

SP: In your data you have analyzed there is a significant percentage of reversals of High Court judgments by the Indian Supreme Court. Do you see this as a positive and proactive role by the Supreme Court? Would you agree that the Supreme Court interfering is a positive indicator of easier access to justice?

WH: It is certainly an important and proactive role for the SCI to correct what it perceives as errors made by the High Courts. One question that we try to explore in our research, however, is whether these reversals are due to the SCI clarifying or changing the legal rules followed by the lower courts, or due to the SCI reviewing the specific facts of individual cases. The Court could have a bigger impact on the court system as a whole by focusing on the former, rather than the latter.

ON SENIOR ADVOCATE SYSTEM

SP: You have encountered with the institution of senior advocates, something completely alien to the American legal system. What is your opinion on America not following the footsteps of the United Kingdom in not having the barrister system and consequently the hierarchical Queen's Counsel or as we call it the senior counsel?

WH: This question really highlights both the similarities and the differences in how Supreme Court counsel are categorized in India and in the United States. In the US, as you note, there is a single Supreme Court Bar with no gradations between "advocates" and "senior advocates." In this way, the US is less rigid and hierarchical. But oftentimes, differences in formalities between legal systems mask similarities in practice. Although no one is given special titles by the SCOTUS, a small subset of the bar handles the lion's share of high-profile Supreme Court litigation. While none of these lawyers are as rich or as famous as India's "grand advocates," they comprise an elite group of lawyers that hold respect and prestige in the eyes of the Court.

SP: Do you think the institution of senior counsel adopted by India promotes an elitism and consequently results in higher costs which India could do without?

WH: This is an important question. It is hard to know the answer. But as the experience of the US suggests, even without a special designation of "senior advocate," there will always be lawyers that have the strongest relationships with the Supreme Court. These lawyers will surely command higher fees.

There is another difference between India and the United States, however, that may contribute to greater elitism in the Supreme Court Bar in India. It is that the SCI holds tens of thousands of oral hearings each year, while the SCOTUS holds fewer than one hundred. Thus, in the SCI, most hearings, such as admissions hearing for special leave petitions, are extremely rushed. There is very limited time for reflection by the judges. In this context where first impressions may be the only impressions, lawyers who are familiar to the justices, and who even have some "star power," may hold greater sway.

SP: Do you think that the senior advocate system permits a division between an elitist litigation vis-à-vis common man's litigation?

WH:This is an interesting question, and it's not a question that our empirical analysis can answer directly. As noted in our previous answer, though, anecdotal evidence suggest that the high cost of senior advocates, combined with their potentially persuasive influence on the Court, could lead to stratification between those litigants who can afford senior advocates and those who cannot.

SP: Have you had the occasion to look up the institution of appointment senior advocates in India? If so are you satisfied with the appointment process of senior advocates?

WH: I am not an expert on the appointment of senior advocates in India! Hence, I'm not in a position to express a judgment.

SP: Does your statistical analysis of the data show, representation by a senior advocate enhances the chances of a positive result on the outcome of the case in the Supreme Court?

WH: We've only done some preliminary analysis on this question, but our initial results indicate that senior advocates appear to have a positive influence on special leave petitions being granted. Work by other researchers has reached this conclusion as well. Whether a senior advocate has a significant influence on the final ruling in the case, however, is a much harder question to answer using our data.

SP: What is your opinion of the cost of litigation in the Supreme Court of India given the fact that the per capita income of an Indian is 6,490 dollars?

WH: From our conversations with judges, practitioners, and academics, the high cost of litigating in the SCI may restrict access to the Court for the poor. Of course, the difficulty of access to courts for the poor is not a problem that is unique to India. It is a challenge everywhere.

ON THE EXECUTIVE INTERFERING IN JUDICIAL APPOINTMENTS

SP: Several jurisdictions have eliminated the executive from the appointments process like the judicial appointments commissions of the United Kingdom, South Africa and Canada, Poland through the Committee of Jurists and also India through the Collegium system. Would you agree with the elimination of the political component in judicial appointments is a desirable situation? Do you feel that elimination of an elected executive from the judicial appointments process would make the exercise far removed from the ethos of democratic constitutions?

WH: I'll answer these two questions together. They go to the heart of the role of a Supreme Court in society. On the one hand, the Court must be independent, rather than beholden to powerful political actors. On the other hand, the Court is part of a democracy. Its authority must have some connection to the ultimate sovereignty which rests with the people. When an elected executive appoints Supreme Court justices, this reduces the independence of the court but increases their democratic pedigree. There is no obvious "right" answer to these questions about how to balance independence and democratic legitimacy.

It's worth noting that appointment is not the only aspect of judicial independence that involves this trade-off. Mandatory retirement at age 65 is the rule for the SCI. This raises the possibility that the executive can indirectly influence the Court, because some justices may seek future government appointments after their retirement from the Court. In the United States, there is no mandatory retirement for federal judges. Thus, there is more political control at the appointment stage in the US than in India, but less thereafter.

SP: Would you agree that the American appointments system is dictated by the executive thereby making the Supreme Court far more susceptible to political partisanship?

WH:The appointments process is surely susceptible to political partisanship, as we have seen in the US, most recently with the hearings on the nomination of Brett Kavanaugh to the Supreme Court.

IMPACT OF NEW APPOPINTMENTS TO SCOTUS

SP: Wouldn't you agree that after the appointment of Neil Gorsuch, the Supreme Court of United States has tilted to the right?

WH: Not necessarily. Neil Gorsuch replaced Antonin Scalia, who in most respects was very conservative. So far, it appears that Justice Gorsuch is about as conservative as Justice Scalia was. The appointment of Brett Kavanaugh to replace Anthony Kennedy is likely to be more consequential for overall tilt of the SCOTUS. While in general, Justice Kennedy could be considered a conservative, he was also considered the "swing vote" on many controversial subjects. If Judge Kavanaugh is appointed to the SCOTUS, most observers predict that he will be a more consistent vote in favor of conservative positions in close cases.

SP: What is your opinion on the recent 5 – 4 decision of SCOTUS striking down a lower federal court ruling and enabling Ohio to continue its practice of purging voters who do not vote in consecutive federal elections and failed to respond to a mailer? Do you perceive this as a serious threat to democracy itself?

WH: Election law in the United States is a vexing field, in no small part because the authority to set criteria for voting and to provide opportunities to vote is diffused among municipal, state, and federal officials, most of whom are political actors who can use this authority to affect election outcomes. Of course, this creates conflicts of interest between these elected officials and the polity. If these conflicts are not sufficiently constrained, then we have to worry about their effects on the democratic process.

WH: As for the SCOTUS case you mentioned, Husted v. A. Philip Randolph Institute, it is an example of the kinds of cases that courts all over the US regularly face. These cases challenge all sorts of state initiatives to create or modify potential obstacles to people seeking to vote. There is also major litigation underway to challenge the drawing of legislative district boundaries for political advantage, so-called "partisan gerrymandering." The SCOTUS had an opportunity to make a definitive ruling against partisan gerrymandering this past term, in Gill v. Whitford, but it did not do so.

COMPARISON BETWEEN SCI AND SCOTUS

SP:Which according to you is a preferable form of appointments of judges, the politically slanted executive driven appointments of the United States or a politically neutral judge assessed system which is in vogue since 1993 in India?

WH: This is a complex question, and an important one! On the one hand, the increased politicization of the appointments process in the United States has reduced the perception of SCOTUS as an independent and neutral institution. On the other hand, the collegium system in India appears to be associated with a Supreme Court that has relatively little diversity in perspectives, at least to the extent that the extremely low rate of dissents and other separate opinions (below 1%) indicates a lack of divergent viewpoints.

ON POLITICS OF JUDGES

SP: The noted Prof JAG Griffith in his book 'The Politics of Judiciary" remarked, "judges are part of the machinery of authority within the state and as such cannot avoid making political decisions". He then went on to remark, "what is important to know the bases on which these decisions are made". Is it actually possible to know the political bases on which judges make decisions?

WH:To some extent, yes. There is an entire branch of political science devoted to studying "judicial behavior" and trying to identify, using data on court decisions and statistical methods, the extent to which a judge's ideology or political background affects his or her decisions. With respect to the SCOTUS and appellate courts in the US, this research consistently finds evidence that the political or ideological background of judges is correlated with how they decide cases. Of course, methods such as these can only discern tendencies or trends in behavior. They can't reveal what is in a judge's mind in any particular case.

ON ATTACKS WORLD WIDE ON THE INDEPEENDENCE OF JUDGES

SP: Are you concerned about the dangers of the executive intimidating the judiciary which is happening ever more frequently in emerging economies? To illustrate Turkey has detailed and has kept in incarceration 800 judges including 2 judges of its Constitutional Court?

WH: There is no question that developments such as these are deeply concerning.

SP: We have seen very different responses when the judiciary is intimidated by the executive. In Turkey both the international media and its own population has not seriously challenged the detention of judges by the government. But last year, in Poland, we saw mass protests in 70 different cities when the government brought in a sweeping legislation to usurp the power of judicial appointments from the Committee of Jurists and to undermine the independence of their courts. Are you concerned about the independence of judiciary the world over and consequently the threat to democracy itself?

WH: Attacks on the independence of the judiciary are often part of a larger agenda to weaken democratic institutions and constraints on the executive. And as you note, such attacks are a real and current issue all over the world.

ON THE NECESSITY OF A INTERNATIONAL TREATY TO PROTECT INDEPENDENT JUDICIARY

SP: In the United States itself, President Nixon gunning for Justice Abe Fortas and Justice William Douglas with impeachment. I recollect Douglas wrote in his autobiography very poignantly, "It is easy to make a charge against a public official and put him to the test of defending himself. But when the accuser is the federal government itself with all its resources behind it, the person attacked is at a tremendous disadvantage". Do you think the time has come, given the recent developments across the globe, to bring in an international treaty to preserve and protect the independence of the judiciary and in protecting the members of the judiciary and free them from political interference and intimidation?

WH:There is no question in my mind that judicial independence is an important component of democracy and a bulwark against authoritarianism. The much harder question, of course, is how to protect judicial independence. Courts that have high popularity and public legitimacy provide themselves a degree of protection against political intimidation. In this respect, I think the high regard in which the public holds the SCI has served the SCI well.

I will confess that I am skeptical that an international treaty is the best avenue for protecting judicial independence across countries. For example, how would such a treaty define independence in a way that is broad enough to encompass its meaning across a diverse set of countries, yet precise enough to give the treaty teeth, such that non-compliance can be verified? How would such a treaty be enforced? These are hurdles that a treaty drafting process would have to overcome.

COMPARING SCI AND SCOTUS

SP:Given the widely differing approaches by the SCOTUS in entertaining only a limited number of cases versus the Indian Supreme Court's system of entertaining scores of petitions, which according to you would be the preferred role model for a Supreme Court?

WH: Each court should be understood and evaluated in its own context, so I would not say that SCOTUS should be a role model SCI, or vice versa. Having said this, my co-authors and I are thinking hard about what a vision for the future of the SCI should look like. This is a difficult question, and as I mentioned, we are writing a book that attempts to provide some answers to this question!