Docket Control at the Supreme Court of Canada: What's Behind the Screen?

Abstract

High courts play an important law and policy-making role in most countries. Considerable professional and popular attention is justifiably paid to the outcome of appeals heard by high courts. However, in many jurisdictions, the prior step of the high court choosing which appeals to hear is arguably at least as important as the outcomes of the appeals themselves that are decided. The Supreme Court of the United States has wide latitude to decide which cases to hear, and denies about 99% of certiorari petitions. Although the Supreme Court of Canada uses a different process to populate its docket (a mix of about 20% appeals “as of right” and 80% appeals granted leave to appeal), like its US counterpart the Canadian court refuses to grant leave to appeal to a high proportion of the applications for leave to appeal. We investigate how the institutional structure for deciding which cases to hear affected the agenda of the Supreme Court of Canada over the period from 1990 to the present. More specifically, we examine whether the justices’ participation in the leave to appeal process suggests that there has been ideological agenda setting at the Supreme Court of Canada. Consistent with our earlier work on the Supreme Court of Canada, we detect only weak levels of influence of ideology on decision making with respect to applications for leave to appeal. Importantly, too, the weak effects extend even to the Chief Justice, which is especially telling given her powers to set the size and composition of the panels that ultimately hear appeals.