How do we ‘judge’ the Judges?
DESK BRIEF: How can the productivity of a judge be determined?
Last week, the SCO Team found itself embroiled in an especially animated debate as it reviewed the Supreme Court’s output through 2021. At the heart of our discussion was a particularly arresting question—how does one measure the productivity of an SC judge?
Perhaps the most intuitive answer is that the productivity of a Judge is tied to the number of judgments they write. This, we discovered, provides an incomplete picture.
While conducting our review, we were aware that judges do more than just ‘judging’. Judges perform administrative tasks such as determining the allocation of cases or devising guidelines for the subordinate judiciary. Even when it comes to the ‘core’ function of judging, judges spend considerable time hearing arguments in scores of cases that do not result in judgments. They may pass significant interim orders that are not recorded as judgments. Additionally, the number of cases allotted to each judge may vary, impacting the number of judgments they author. The seniority of a judge may further have a bearing on authorship—as per convention, the senior-most judge on the Bench decides who authors the judgment.
During the course of our discussion, the Team discovered that the fundamental flaw in equating productivity with the number of judgments is that not all judgments are qualitatively similar. The average number of pages in a judgment, itself not the most reliable indicator of quality, varies widely across Judges. For instance, Justice M.R. Shah, the most prolific author of 2021 with a whopping 111 judgments to his credit, writes remarkably short judgments. A random sampling of his judgments shows that they rarely cross 30 pages, often hovering at around seven or eight pages. Other Judges have more loquacious styles, conducting a step-wise and detailed examination of the submissions. Others draw from foreign jurisprudence, literary and philosophical texts, or engage extensively with precedent.
At the end of our lively yet instructive discussion on how to measure Judges’ productivity, a few things became apparent—the productivity of a Judge is difficult to determine, with the number of judgments authored by a judge a partial but weak indicator. While the number of pages is a marginally better factor, it too falls short of telling us how much a Judge is contributing to the Court.
Is there in fact some ineffable metric that can be used to ‘judge the Judges’?
While this question remains hanging, possibly providing fodder for future discussions, you can find more on the Supreme Court’s 2021 output here.