Chapter 3. Decision Making
3.3 Explaining Dissent Rates on a Consensual Danish Supreme Court
Henrik Litleré Bentsen; Mark Jonathan McKenzie; and Jon Kåre Skiple
Danish politics, and Scandinavian politics in general, has historically been popularized as consensual (see Lijphart 1999; and to a lesser extent, see Elder, Thomas and Arter 1982). Any cursory student of Western European politics has encountered this characterization of the Danish political system. By way of example, a Western Europe reference book from 1982 describes the Danish political system as containing “a great measure of underlying stability despite a multi-party system” and asserts that “such stability is due in large part to the Danes’ tradition of tolerance and compromise and to the overall consensus about political aims and democratic means” (Thompson 1982, 267). More recent research challenges aspects of this convention (Arter 2006). Nevertheless, this popular characterization of Danish politics as consensual extends to the Danish Supreme Court as well (Christensen 2011b). In a 2011 news article, Danish Supreme Court judge Jens Peter Christensen wrote that the kind of politics observed on the US Supreme Court is absent in the Højesteret (or Danish Supreme Court). Judge Christensen (2011b) describes Danish Supreme Court judges as “boring” when compared to their counterparts on the US Supreme Court. And unlike the political divisiveness observed on the US Supreme Court, Judge Christensen argues that the Højesteret’s decisions often end with full agreement among the justices—even on the most important constitutional questions (Christensen 2011b). How accurate are Judge Christensen’s claims about the consensual nature of Denmark’s highest court? And if the Court is consensual, what explains these levels of agreement? Could the explanation be as simple as that Danish judges are “boring,” as Judge Christensen surmises, or does this collegiality arise from an even more mundane explanation of the institutional rules governing Højesteret operations?
In this study of Danish Supreme Court decisions in 2014 and 2015, we set out to explore claims about consensual decision making on the Højesteret. Our research from this time period confirms Judge Christensen’s characterization of the court as very consensual. If we define consensus and collegiality as judges expressing unanimous agreement with regard to who wins a case and what the legal explanations are for the outcome, then the vast majority of Danish Supreme Court cases end in unanimity. The more important question, however, is why Danish judges might issue a dissent in the face of this strong norm of consensus. In this respect, our study perhaps raises more questions than it answers. The paucity of cases containing dissents makes it difficult to pinpoint why Danish justices are so consensual. Nevertheless, we do find that cases involving the European Convention on Human Rights (ECHR) engender significant disagreement among the justices. Furthermore, some institutional features of the Højesteret provide some clues as to the high rates of collegiality.
We begin the study by addressing the question of why courts scholars would study dissent in the Danish Supreme Court. Next, we explain the formal processes of decision-making in the Højesteret and address the typical causes of dissent in the judicial politics literature as they might relate to Denmark. After describing the data for our chapter, we present our statistical results. Finally, we conclude with a discussion on the causes and nature of dissent in the Højesteret.
Why Study Dissent on the Danish Supreme Court?
Both judges and scholars of courts are interested in the nature of judicial dissent and collegiality because such behaviors carry certain benefits or drawbacks for courts (Edwards 2003). For example, dissent could potentially damage a court’s legitimacy and impede “the efficient administration of justice, because conflict among judges interferes with orderly disposition of a court’s caseload” (Hettinger, Lindquist, and Martinek 2006, 19–20). Meanwhile, collegiality (as evidenced by unanimity) might increase the influence of a high court within a democratic system and foster greater legitimacy and respect for a court’s decisions. Consider cases such as the US Supreme Court’s Brown v. Board of Education (1954) or the Danish case involving an issue over the Iraq War. In each of these momentous decisions, these countries’ Supreme Court justices reached unanimous verdicts. Presumably, justices on the highest court in these cases were motivated to issue a unanimous verdict (and avoid dissent) in order to strengthen these courts’ influence on policy. If collegiality (as evidenced by unanimity) is a desirable trait for a court, the study of what drives collegiality on Denmark’s Supreme Court is interesting because of its scarcity of dissent (see figure 1).
Judicial scholars continue to search for those universal factors driving the “puzzle of judicial behavior” (Baum 1997), and research on decision-making in courts such as Denmark—a country with a high court that has a different legal culture and different institutional incentives in comparison to the US Supreme Court—can provide us with a fuller perspective on some of the universal factors influencing judicial decision-makers in democracies. The Nordic legal framework offers a unique perspective to accomplish this task. Nordic legal systems are not common-law systems but rather somewhat in between common-law systems and the civil law systems of continental Europe (see Blume 2011; Hirschl 2011; Lindblom 2000). Unlike common-law systems, the Danish legal system does not recognize the concept of binding precedent arising from prior court decisions; however, court decisions can represent an important source of law (Blume 2011). Given the moderate importance of precedent, the Danish Supreme Court will sometimes cite its own past decisions and decisions of international courts, though not every case contains citations to past precedent. Furthermore, unlike the US Supreme Court, where striking down the unconstitutional actions of another part of government is not unusual, such an event is almost nonexistent in Denmark. The 1953 Danish constitution does not provide the Danish Supreme Court with the authority to review the constitutionality of government actions, and for a long time, Danish legal scholars debated whether the Højesteret had this power of judicial review (Christensen, Erichsen, and Tamm 2015). More recently, justices on the Danish Supreme Court have been known to claim the power of judicial review in theory (see Christensen 2011a), and this concept has become more general in Denmark (Christensen, Erichsen, and Tamm 2015). But in practice, the Højesteret has engaged in judicial review only once in the last 150 years (Christensen, Erichsen, and Tamm 2015; Wind 2010). Regardless of the extent of the Court’s power of judicial review, it is fair to say that the Danish Court exercises a higher level of deference toward other branches of government (Rytter and Wind 2011) in comparison to either the United States or even its Nordic neighbor Norway. In many respects, Danish judges face different priorities and incentives and a very different legal culture from American jurists, and thus we have much to learn about judicial behavior from Danish courts and judges.
Moreover, when compared to judicial dissents in other democracies, Denmark’s highest court provides an interesting perspective on this type of judicial behavior. Figure 1 illustrates the stark differences in dissent rates between Denmark and the common-law countries of the United Kingdom, Canada, and the United States. Looking at a similar time period, one notices that unanimity rates for cases in Denmark exceed 90 percent while unanimous opinions in the US constitute less than half of all opinions for a comparable court term. Even Norway, a Scandinavian neighbor with a similar legal and political system to Denmark, has lower rates of unanimity (Bentsen 2018). Moreover, it seems the levels of unanimity in the Danish Supreme Court are even higher when compared to the 1990s, when a previous Danish study found rates of unanimity at around 78 percent as it relates to five-judge panels and 72 percent for seven-judge panels (Andersen 2003). We’ll address possible explanations for these intercountry differences later in the chapter, but while there is no shortage of studies on dissent rates in courts in America (e.g., Brace and Hall 1990, 1993; Epstein, Landes, and Posner 2011; Goldman and Lamb 1986; Hettinger, Lindquist, and Martinek 2006), Canada, the UK, or Norway (Bentsen 2018; Hanretty 2013; Ostberg, Wetstein, and Ducat 2004; Songer, Szmer and Johnson 2011), few studies have examined dissent in the Danish High Court (but see Andersen 2003; Skiple, Bentsen, and McKenzie 2019). And while research on European high courts has increased in recent years (e.g., Hanretty 2012, 2013; Dyevre 2010; Grendstad, Shaffer, and Waltenburg 2015), quantitative political science studies on Danish judicial decision-making are practically nonexistent, with the exception of Wind (e.g., 2009, 2010) and Bentsen, McKenzie, and Skiple (2019).
Judicial Decision-Making in the Danish Legal System
The Formal Process of Decision
Before investigating the potential causes of judicial dissent in Denmark, it’s important to understand how the Danish Supreme Court’s decision process works in a formal sense. The Danish legal system consists primarily of three levels of courts: the district courts (the byretten), the Western and Eastern High Courts (the intermediate appellate courts known as the Landsretten) along with the Maritime and Commercial Court (referred to as Sø- og Handelsrettens), and the Højesteret (the Supreme Court). For most cases, trials begin in a district court and, if appealed, go to one of the high courts. In these instances, in order to go further and get into the Supreme Court, litigants have to pass through the Procesbevillingsnævnet (Appeals Permission Board). The Procesbevillingsnævnet is a judicial body that acts as a gatekeeper for the Supreme Court, deciding which cases can proceed to appeal in the Højesteret. The Procesbevillingsnævnet is composed of a noted lawyer, a law professor, two lower-court judges, and a Supreme Court justice. The Supreme Court justice has some influence on what cases the Procesbevillingsnævnet decides to take, but the board operates independently of the Supreme Court. There is also another route to the Danish Supreme Court. While the Eastern and Western Landsretten mostly function as appeals courts, in some kinds of cases—usually deemed important—the Landsretten function as the trial court. In these instances, because all litigants have a constitutional right to appeal to at least one higher court, the Supreme Court is obligated to take these cases. Finally, the Danish judicial system has a special court—mostly for certain types of business and maritime litigation—called the Maritime and Commercial Court. If the trial occurs in the Sø- og Handelsrettens court, then the litigants get an automatic appeal to the Supreme Court. In short, the Højesteret does not have control of its own docket (Bentsen, McKenzie, and Skiple 2019). This lack of control raises the possibility that the Danish Højesteret might have to accept frivolous or easy cases, and it also potentially increases the workload of Danish justices because they cannot limit the number of cases they have to consider for decision (see Bentsen, McKenzie, and Skiple 2019). If we compare the Danish Højesteret to those countries listed in figure 1, we find that all the other courts, including the Norwegian Supreme Court, have almost full control of what cases they will accept to be argued before the court.
The decision-making process at the Court is not lengthy or complicated. The nineteen judges meet in rotating panels—typically of three, five, or seven judges (Blume 2011)—to hear oral arguments and make decisions in a case. Judges do not empanel themselves based on expertise in the law with respect to the issues in the case; rather, all the judges on the court are expected to deal with all manner of legal issues (Zahle 2007). After the parties present their oral arguments, tradition calls for the courtroom to be emptied of the attorneys and public, and the doors to the public entrance are locked, with the judges inside. At this point, one of the judges—called the “leading judge”—lays forth all the legal arguments and facts of the case to her colleagues and suggests a decision. This leading judge is also tasked with writing up an initial draft of the judgment prior to the oral proceedings (Zahle 2007; Christensen, Erichsen, and Tamm 2015). After the leading judge speaks her opinion, the other judges then add their thoughts in order of seniority, and some judges may even have their own draft opinions prewritten as well, which can end up later replacing the draft opinion of the leading judge (Zahle 2007; Christensen, Erichsen, and Tamm 2015). After the formal deliberation ends, the judges leave the courtroom, remove their robes, and retire to another room to begin the opinion-writing process (Zahle 2007). In reality, deliberation can continue in this room as well. The process is very collaborative in a personal way, as all the judges sit together and write out the decision. Even if there are dissenters in a case, those dissenters will also sit and help in the formulation of the judgment. It is also the case that a dissenting opinion may cause the majority to write a lengthier opinion. According to one Danish legal scholar, “The dissenting opinion initiates a process within the majority . . . with the task to justify the majority opinion [so that] . . . judgments with an elaborate dissenting opinion are often more amplified than judgments without dissenting opinions” (Zahle 2007, p. 574–75). Historically, judges were barred from publicly dissenting in cases until 1936, when anonymous dissents were then allowed (Zahle 2007). Judges were not able to express dissents by name until 1958 (Zahle 2007). When a final judgment is written, the opinions are typically not very long and are written fairly quickly. Deliberations and the writing of the opinion typically happen in a couple of days (Christensen, Erichsen, and Tamm 2015). This process is in sharp contrast to the US Supreme Court, where US justices offer very little exchange of ideas during the initial secret conference proceedings, and where the work of opinion writing happens in isolation in a single judge’s office over a number of weeks (Perry 1991). The exchange of ideas and bargaining on the US Supreme Court does not really happen until much later, when draft opinions are circulated to other justices on the Court (Wahlbeck, Spriggs, and Maltzman 1998), and by that time, the views of the dissenters and the majority have undoubtedly crystalized, though there are occasional instances where justices may change their minds and switch sides.
The Politics of Decision-Making in Denmark
In terms of the political dynamics of the Højesteret in its decision-making, Danish legal scholars tend to agree that politics (at least in an ideological left/right perspective) appear absent in the decision-making of the Court. While it seems unusual for a supreme court to be devoid of politics, there is currently just not enough empirical evidence to determine to what extent Højesteret judges engage in political decision-making from a left/right perspective (or from some other political dimension). Since reforms on judicial selection were made in the 1990s, judicial candidates for the Danish Højesteret are chosen by an independent judicial selection board called the Judicial Appointments Committee. With the creation of this independent committee, the party in control of government effectively has little influence over new candidates chosen for the Supreme Court. Next, the potential candidate must sit on a number of cases with other Supreme Court judges, who then grade his or her performance. The Supreme Court judges themselves then decide whether to admit the nominated judicial candidate to the Supreme Court. This selection process undoubtedly provides some insulation and political independence for judges that reach the bench, but it could also further collegiality. Furthermore, the absence of any significant judicial review performed by the Højesteret and the lack of support for the concept of judicial review among the major political parties, along with Danish legal culture, also work against judges attempting to assert their politics from the bench (Wind 2009). Finally, the Højesteret judges lack control of their own docket, which may require them to hear cases for which there is little ideological disagreement among the judges. Hence, if there are any ideological differences left among the judges given the conditions referenced above, previous research suggests that courts lacking in docket control exhibit less ideological disagreement in their decisions (e.g., Brace, Yates, and Boyea 2012; Hall 1985). Thus there are institutional conditions at the Højesteret that have the potential to reduce incentives for judges to engage in ideological decision-making: (1) the collegial and collaborative process of decision-making and opinion writing as described above, (2) a rather nonpolitical commission for appointing judges that is now disconnected from the Ministry of Justice, (3) a legal and political culture that encourages consensus rather than dissent and individualism, (4) a lack of docket control, and (5) and a lack of tradition in robust judicial review that makes the Court somewhat subservient politically to the desires of the parliament.
Nevertheless, it is a rather unusual proposition in American judicial scholarship to suggest that judges’ sociological and political life experiences do not influence their behavior or provide them with perspectives that differ from their colleagues on the bench when arriving at decisions in a case (Baum 2006; Segal and Spaeth 2002; Ulmer 1970; Tate 1981), and Nordic judges are no less human in this regard (see Bentsen, McKenzie, and Skiple 2019; Skiple, Shaffer, and Waltenburg 2016; Grendstad, Shaffer and Waltenburg 2015; . As Grendstad, Shaffer, and Waltenburg argue, “everything we know about the formation of political attitudes militates against the likelihood that these mature, highly educated members of the elite public are without preferences on the full range of social, political, and economic issues that are argued before them” (2015, 6, chap. 1).
Currently, there are a few studies that suggest sociological and political background factors or other nonlegal factors affect judicial behavior in Danish tax cases (Bentsen, McKenzie and Skiple 2019; Skiple, Bentsen and McKenzie 2019), but there is no research exploring whether sociological background factors spur dissenting behavior in the Danish Supreme Court. This study incorporates some sociological background factors in order to test these propositions on a preliminary basis, but mapping out the sociopolitical space of the judges of the Danish Højesteret is beyond the scope of this particular chapter. Here, we focus on the effects of a judge’s gender, his or her career characteristics, and his or her birthplace region in the country.
Estimating Dissent in Denmark
In this section, we outline a number of factors that may influence dissenting behavior in the Danish Supreme Court, connecting those factors to the broader political science literature on judicial dissents.
Sociological Background Factors
First, as noted earlier, a primary motivator in dissenting behavior in US courts is ideology (Hettinger, Lindquist, and Martinek 2006). Unfortunately, no similar ideology measure is possible for the Danish Supreme Court, and the current structure of judicial appointment makes it nearly impossible to decipher whether the current party in control of the government and the Ministry of Justice favored the court appointment. Absent a reliable way to capture ideology at the Danish Supreme Court, we can still take advantage of a number of social background characteristics of the judges for examining dissenting behavior on the Højesteret. During their career, judges do go through a socialization process (Baum 2006; Grendstad, Shaffer, and Waltenburg 2015; Hettinger, Lindquist, and Martinek 2006). One possible representation of this political socialization Danish judges experience may involve where they were born. In the Norwegian Supreme Court, Grendstad, Shaffer, and Waltenburg (2015) have found some limited instances where judges born in Oslo behaved significantly different from those judges born in the periphery of Norway. Denmark’s geographic layout—with a large capital city on the far end of one side of the country—is similar to Norway in the sense that there is an outsized capital and a geographically dispersed population on the periphery. As such, judges with a background born in the periphery might approach politics and law somewhat differently from their Copenhagen-born colleagues (including greater Copenhagen and the island of Zealand).
Social background work experience might also affect how collegial judges will be on a Court. As Blume notes, “Most judges have had a career in the Ministry of Justice although in recent years it has been an aspiration that more judges should have another background” (2011, p. 32). To capture the various judicial backgrounds of the judges, we coded for whether the judge spent any previous time working at the Ministry of Justice, whether the judge had been a law professor in academia, and whether the judge was ever engaged in private practice before ascending to the bench. In previous research on decision-making in Danish tax cases, Bentsen, McKenzie, and Skiple (2019) find scant evidence that past work experience has much effect on Højesteret judges’ behavior in tax cases. On the other hand, Bentsen (2018) found that former academics in the Norwegian Supreme Court were significantly more likely to issue dissents compared to their colleagues. Thus the possibility exists that judges with private practice experience or experience in academia may have broader disagreements with interpretations of the law compared to their fellow colleagues, though this possibility seems low for Denmark.
Years of experience on the Højesteret (seniority) is another judge characteristic we examine in our study. Judges with less experience may not feel confident enough to begin asserting dissents with their more senior colleagues. In their study of US appellate courts, Hettinger, Lindquist, and Martinek write that “freshman judges may be less inclined to author a separate opinion, because they are simply unsure about the appropriate circumstances in which such opinions are warranted . . . [and] may be more hesitant to challenge senior colleagues by dissenting or concurring from majority opinions” (2006, p. 53). In a particularly collegial court such as the Højesteret, newcomers to the bench may be particularly reticent about dissenting.
Case-Level Legal Factors
To add to our social background variables of judges, we examine a number of contextual factors relating to the cases themselves (Brace and Hall 1990; Hettinger, Lindquist and Martinek 2006). According to Hettinger, Lindquist, and Martinek (2006), “All appellate cases are not created equal” (2006, p. 57), and therefore it is important to account for the types of legal cases that come before the Court. We coded dummy variables for cases involving taxes, crime, labor law, European Union (EU) law, ECHR issues, and contract disputes. We have a number of reasons for examining these types of cases. Criminal cases in the US Supreme Court can be quite divisive and controversial, and we wanted to test for similar reactions in the Danish Højesteret. We also thought that tax cases might evoke dissents not only due to their complexity but also due to their importance because Denmark is a strong social welfare state and is reliant upon a robust tax system. In cases involving EU law, Denmark has shown reluctance to make references to the European Court of Justice (ECJ) compared to other countries (Wind 2010). Most references to the ECJ have been initiated by the Supreme Court or the high courts (Wind, Martinsen, and Rotger 2009). With the Højesteret shouldering a good deal of this responsibility, it is possible that cases involving EU law might generate more dissent, though research from Bentsen (2018) showed no effect on dissent for EU law cases in Norway. Finally, we also account for cases involving issues stemming from the ECHR. The specific incorporation of the ECHR into domestic law has brought some controversy as to how the convention and precedent from the European Court of Human Rights (ECtHR) apply in Denmark (Lebeck 2010). When human rights issues arise in cases, perhaps some Danish judges are looking to narrow the scope and power of the supranational court, the ECtHR. ECHR cases can conjure an array of political debates and conceptions about democracy and the limitations of government. Bentsen (2018) has found that ECHR cases increase dissent in Norway, and thus there is a real possibility that similar effects can be seen in the Danish Højesteret.
Finally, we take account of contextual institutional factors that could affect rates of dissent. First, the panel size of the court, which potentially is a measure of case salience, could affect dissent rates. Most judicial panels contain five judges. However, panel sizes can contain more than five judges (in cases deemed more important by the court). The larger the panel size, of course, the greater the possibility for a dissent to occur in a case. Second, we consider whether the Højesteret set the case for oral argument or instead decided the case only under written submission in light of procedural rule (Retsplejelovens) §378. If a case gets slated by the judges for consideration only in writing (without the benefit of oral argument for the parties), then the possibility increases that the case is either not very important or not particularly complicated. In short, this institutional rule can be a measure of either case complexity or case salience (see Bentsen, Grendstad, Shaffer, Waltenburg 2019). Third, we examine whether dissent occurs more frequently in cases that are the final decision on the merits of the case (called dom cases in Danish) versus those cases heard by the Court involving interlocutory appeals (referred to in Danish as kendelse cases and frequently involving issues in procedure). Interlocutory appeals are cases where a procedural dispute arises in the court below before the case is finished, and the litigants appeal those procedural issues to the Supreme Court. If the Supreme Court takes up the procedural issue, then the case in the court below is put on hold until the Supreme Court resolves the procedural issue. We expect Supreme Court dissents would be more likely to occur in cases that are final decisions on the merits or outcome of the case rather than preliminary cases involving procedural questions. Finally, we also account for the high court from where the appeal originates.
Unfortunately, we cannot test for the effects of docket control on dissent in our limited study. However, the literature on judicial behavior finds that courts without docket control are less likely to engage in dissent compared to courts with lots of discretion regarding the cases they accept for consideration (Hall 1985; Pruet and Glick 1986; Eisenberg and Miller 2009).
Data on Højesteret Decisions
The data collected for this study include all Højesteret opinions published between January 1, 2014, and April 30, 2015. During this sixteen-month period, the Højesteret issued 250 published decisions, including interlocutory/preliminary appeals (kendelse cases) as well as decisions on the final merits of a case (dom cases). Yet judges on the court registered disagreements with each other in only 21 published decisions, which means only 8.4 percent of cases resulted in a dissent (see figure 2). This rate comes out to about one to two court cases per month where disagreement exists. During our period of study, twenty judges sat on the court, and seventeen of them issued a dissent in at least one case. There were three judges in our data who never issued a dissent (see table 1). Two very collegial judges were Judge F and Judge I (see table 1), who sat in seventy-seven cases and forty-five cases, respectively, without a single dissent from the majority.
|Danish Judge alias (names are redacted)||When Judge Assumed Bench||Dissenting Votes (n)||Dissenting Votes (Percent)||Votes (n)|
When compared to the US Supreme Court, this measure of agreement among Danish judges is astounding, and some comparative perspective is in order. As reported, the US Supreme Court’s rates of dissent are much higher than the Højesteret, though they have varied considerably over time. Still, at no time in modern history has the US Supreme Court ended a term with a dissent rate as low as 8 percent, which is what the Danish Court produced in 2014. Such a low rate of dissent in the US Supreme Court seems impossible. In the 1970 term, for example, dissents occurred in 81 percent of cases at the US Supreme Court (Goldman and Lamb 1986). Even in the recent term of 2013, where the US Supreme Court demonstrated the most collegiality in more than half a century, dissents were still issued in 39 percent of all cases heard that term (Sunstein 2014), over five times higher than the recent years of the Højesteret. The Højesteret’s rates of dissent more closely approximate dissent rates in US appeals courts and some state courts.
From an institutional perspective, rates of dissent are lower in US appeals courts and some state courts because many of these courts engage in error correction and have no control over their docket to weed out more mundane legal issues. The Højesteret also has no control over its docket, but that feature may not completely explain the extremely high rates of collegiality, because as noted earlier, the Procesbevillingsnævnet acts as a gatekeeper to keep out frivolous appeals and legal questions that contain an easy legal answer. This review board at the Højesteret is unlike the situation many US federal appeals courts and some state supreme courts face.
At the individual level, only thirty-three dissenting votes were issued by judges in the twenty-one cases where a dissent occurred. This number of dissenting votes is also very low when compared to the number of cases where dissents occur. What it means is that when there is a dissent in a case, more often than not it is only a lone judge dissenting rather than a closely divided vote.
Results: What Factors Explain Dissent on the Court?
In this next section, we examine three kinds of factors explaining dissent before briefly reporting the results of a logistic regression of these various factors.
As noted in an earlier section, the sociological background of a judge could explain his or her dissenting behavior. We considered some of these explanations for dissents in the sixteen months of Danish Supreme Court decisions we examined. Table 1 illustrates how the twenty Danish justices engaged in dissents over these months. Due to norms in legal culture about judicial and individual privacy in some parts of Continental Europe, we have obscured the names and genders of the justices and provided them with aliases. When considering the cases where dissents occurred, the table provides frequencies on the individual justices who dissented (see table 1).
The table shows that judge “Different View” registered the most dissents, both in absolute and relative numbers, with six dissenting opinions, or about 8.3 percent of his votes. There is perhaps nothing unusual about Judge Different View’s background before assuming the bench. He was born in Køge (a short train ride from Copenhagen) and attended the University of Copenhagen. He is about in the middle of the pack in terms of his experience on the Supreme Court. He worked neither as an academic nor in the private sector, but rather spent nearly two decades working in the Ministry of Justice. We could make similar observations about Judge “X,” the judge who engaged in the second-highest number of dissents. Judge X was also born near Copenhagen and attended the University of Copenhagen, and he also has no private practice experience. However, Judge X spent most of his career as a lower-court judge. Judge Private Sector has a moderate number of dissents, yet unlike Judges X and Different View, Judge Private Sector spent a considerable amount of his career in private practice. The reality, however, is that dissents are rare even among those justices with the most dissents. Even more important, without more data over a number of years, it is perhaps premature for us to claim that certain justices are more prone to dissent than others.
Going beyond individual judges, we aggregated judges by their social backgrounds in table 2. What we find just by looking at cross tabulations in table 2 is that there is practically no variance in dissenting behavior based on a judge’s sociological background characteristics. As for experience on the Højesteret (see table 1), there appears to be no regular pattern evident involving years of judicial experience and dissent. Certainly, the relationship is not linear. While the judges with the most dissents tend to be concentrated among the judges with moderate to moderately high experience on the Supreme Court, we also see that judges with the most experience register very few dissents. In short, there is little evidence to make experience a potential driver of dissent. Perhaps one could conclude that the most experienced justices are typically in leadership roles and are less likely to dissent, whereas very junior judges who are new to the court will be more reticent to dissent as well (leaving the moderately experienced justices as the group most likely to dissent). However, without more data and given the rarity of dissents overall, such conclusions are more speculative than definitive. Our logistic regression analysis confirms this view.
|All Cases||Born in Greater Copenhagen area||Born in the periphery||Law Professor||Public Sector legal experience||Private Sector Legal Experience||Worked in Ministry of Justice|
|Votes in Unanimous decisions||1184
Another potential explanation for dissent concerns the types of cases the Court hears. Some kinds of issues should engender more dissent than others. Table 3 includes a number of different categories of cases in our data. Most types of cases hover around the mean of 8 percent and do not stand out as drivers of dissent.
|Tax||Crime||Labor Law||Free Speech||Contract Dispute||ECHR issues raised||EU issues raised||Other||All Cases|
|Cases with dissents (% of cases by topic with dissents)||3
*Cells do not add up to 100% because some case topics overlap with others (and not all case types are shown above). For example, 1 of the 2 Free Speech cases is also a criminal case.
Cases that raise questions of interpretation about the ECHR produce the most dissent. Justices dissent in about 21 percent of cases where either part or all of the case concerns the ECHR. In fact, there is a strong statistical correlation between dissenting behavior and ECHR cases, not unlike what Bentsen (2018) found in Norway. This result is interesting, but further exploration into these cases provides inconclusive evidence of the nature of dissent in these cases.
These six ECHR cases in our sixteen months of data involve multiple legal issues, not just ECHR questions. Only one of the dissents out of the six cases actually bothers to mention the ECHR. In two other cases, the dissenter refers to whether the lower-court judge was impartial but never explicitly mentions the ECHR. Finally, in the three dissents in the other cases, the dissenters focus their discussion on other legal issues.
Given the substance of the dissents in these cases of our study, it’s not clear how much the ECHR portion of the issues in these cases is causing disagreement among the justices. From a hierarchical perspective, some Danish legal scholars do not view the supranational ECtHR—which is charged with oversight of European countries who are signatories to the ECHR—as being a higher court compared to the Højesteret; instead, they see it as existing on roughly the same level (Lebeck 2010). Furthermore, the ECHR is incorporated into national law as a statute, and thus from that perspective has no higher-order power over other domestic laws of the Danish state (Lebeck 2010). Nevertheless, perhaps there is something in the facts of these cases—which also involve ECHR concerns—that produce higher disagreements. According to Christensen, Erichsen, and Tamm, “The European Convention on Human Rights . . . has created a legal foundation, which from time to time has brought the Supreme Court closer than previously to a political field of tension vis-à-vis both the executive and the legislative powers” (2015, 49).
Finally, we consider some institutional causes of dissent and collegiality. One real possible explanation for the lack of dissent in the Danish Højesteret is the Court’s lack of docket control. Figure 1 provides suggestive evidence because every other supreme court listed in figure 1 has more autonomy over its docket compared to Denmark. Unfortunately, our data cannot really address this question because our study is focused on one country. However, we do investigate some other possible institutional explanations.
Case complexity can influence dissent rates, though how one measures case complexity is not straightforward. One might be tempted to consider opinion length as a measure of case complexity. After all, the more complex a case is, the more explaining justices may have to do. The word count in the opinions in our study, after excluding the number of words in a dissenting opinion, correlates highly with dissent. The problem with this measure in terms of the causal arrow, however, is that dissenters’ behaviors may be causing the majority to write a lengthier opinion in order to justify their decision (Zahle 2007; Epstein, Landes, and Posner 2011). One could count the number of legal issues addressed in a case (Hettinger, Lindquest, and Martinek 2006). However, in the context of the Danish Supreme Court, this method could leave out other issues considered by the justices but not included in the opinion (see Zahle 2007).
There are other measures of case complexity (Hettinger, Lindquest, and Martinek 2006). For example, Bentsen, Grendstad, Waltenburg, and Shaffer (2019) develop a measure based on the length of time the Norwegian Supreme Court sets for oral argument. When a case is more complex, the justices set aside a larger block of time. Unfortunately, we do not have that level of information for Denmark. However, the Danish Supreme Court does have a rule that allows the Court to take cases by written submission only—with no oral argument ( Retsplejelovens§387). We assume that while more complex and controversial cases are set for oral argument, cases that are either of lesser importance or of less complexity are considered by written submission. This method is rather more blunt than measuring allotted time for oral argument, but it does have some value. The Danish Supreme Court set twenty-five cases for written submission during our period of study. Table 4 provides a breakdown of dissents in cases with oral argument versus written submission. We find that every single case slated for written submission is decided unanimously in our data. In other words, cases that are more complex engender more dissent, a phenomenon found in other courts in other countries.
|No Oral Argument||Oral Argument||Final decisions on the merits (Dom cases)||Preliminary procedural cases (Kendelse cases)|
|Cases with dissents (% of cases by topic with dissents)||0
Another potential useful measure of both case complexity and case salience is the size of the panel. For each case heard in the Højesteret, the standard panel size is five judges, but the panel size can vary greatly sometimes. In our data, panels range from as few as three judges to as many as nine. If a case is important or complex, the Court might assign nine justices. If the case is not complex or is less important (particularly for cases that are preliminary in nature), then the Court may only assign three judges. Cases with more judges may increase dissent rates because they are more important or more complex or simply because there are potentially more judicial opinions that one has to accommodate as the panel size grows. Our results illustrate that not a single dissent occurs in the three-judge panels. On the other hand, as one increases from five judges onward, the pattern is less clear.
Another institutional factor that could influence dissent is whether the case is a preliminary procedural question (kendelse case) or a final decision on the merits (dom case). We find in our cross tabulations that there is some difference in levels of dissent, with dom cases containing higher rates of dissent (see table 4). However, our logistic regression results—when statistically accounting for the host of factors potentially causing dissent in the Danish Højesteret—do not show this variable as obtaining traditional levels of statistical significance.
Finally, we also examine whether dissents in the Supreme Court are related to the three high courts from which the case originates. For example, might cases from the Maritime and Commercial Court create more dissent than cases from the Western or Eastern High Courts? In the end, we found no statistical difference in levels of dissent when considering the location of the lower-court opinion.
These cross tabulations can be helpful in understanding which factors influence dissenting behavior, but multiple regression models provide a more robust method of determining whether any of the relationships we observe in the cross tabulations are statistically correlated after accounting for other potential independent variables. In other words, a multiple regression model can more accurately pinpoint whether a statistical relationship exists between the independent variables and dissenting behavior. In this study, because our dependent variable—whether the judge dissents or agrees with the majority opinion—is dichotomous, we employed a logistic regression model to determine what factors predict dissent. Of all the factors considered in our statistical model, the only variable that showed statistical significance was whether the cases involved ECHR issues. Cases involving the ECHR were positively and significantly related to dissent. None of the other factors considered in the model were related at traditional levels of statistical significance, though panel size and dom/kendelse cases came close to being statistically significant. In short, many of the traditional factors that might explain dissent in a court showed no statistical relationship here in Denmark. However, because the Danish Supreme Court is so collegial and there is so little variance in the judicial votes on dissent, it perhaps is unlikely that one might find very many factors that statistically predict dissent on the Danish Supreme Court.
The findings in this chapter demonstrate that the Højesteret is a very collegial judicial body. Rates of nonunanimous decisions from January 2014 to April 2015 constituted less than 10 percent of the cases. The primary factor that engendered dissent appeared to be ECHR cases. Case complexity and case salience, if measured by whether the Court held oral arguments in the case, also appear related to dissent levels. The Danish Supreme Court registered no dissents in our period of study concerning cases submitted in writing without oral argument.
Given the level of collegiality, it is perhaps not surprising that the Danish periodical Mandag Morgen reported in 2009 that the public institutions for which citizens have the most confidence are the Danish courts (Danish Court Administration 2010, 2015). These low rates of dissent are akin to figures in some US circuit courts of appeal as well as some US state supreme courts. Commentators and political scientists often talk about the consensual nature of politics in Denmark and other Nordic countries (Lijphart 1999). As Danish legal scholar Henrik Zahle writes, “There is a tacit but efficacious effort towards agreement” in the Højesteret (2007, 571–572). Yet though US appeals courts have similar levels of agreement, it is unlikely that such remarks about consensual political behavior would be made about them.
Are these low dissent rates explained by the Court’s lack of docket control? It is important to remember that unlike some state supreme courts or the US courts of appeal, there is no automatic right by Danish citizens to appeal to the Højesteret. Though the Højesteret cannot control its own docket, the Procesbevillingsnævnet exercises this role for cases that are not being appealed from a court of first instance. The Procesbevillingsnævnet presumably acts as a gatekeeper in order to allow only the most important cases or cases with special circumstances into the Højesteret’s chambers. Frivolous appeals should thus only rarely arrive at the Højesteret’s doorstep. Nevertheless, even if most cases accepted by the Procesbevillingsnævnet are not frivolous, a lack of docket control by the Court means that the Court does not have the authority to choose cases it finds interesting or significant or to control its own workload. The judicial appointment process could also play a role in high collegiality levels. The judges themselves have significant influence when it comes to who they accept onto the Court. In conclusion, while our study cannot rule out the possibility of a consensual politics unique to Denmark, the institutional structures of the Court provide a reasonable explanation for its collegiality.
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Questions for Consideration Using the dataset included with this article. Refer to the codebook for help in manipulating the dataset. (https://github.com/osuoer/open-judicial-politics/raw/master/McKenzie,%20Bentsen,%20Skiple-data.xls)
- How often do judges dissent in relation to the size of the panel?
- How often do cases with dissent arise in each month of the dataset?
- What are dissent rates in cases that originate from the various high courts of Denmark?
- ECHR cases have significantly higher levels of dissents. Which high courts do these cases originate from?
- Cases that occur under written submission, with no oral argument, garner no dissents in our dataset. What kinds of legal cases does the Supreme Court slate for written submission?
- Workload could be a factor in dissents. Judges who are busy may not have time to write dissents. Using the dates of the cases in the dataset, do judges who dissented have many cases assigned to them within the previous month?
CODEBOOK: DANISH SUPREME COURT DATABASE
i. The appellant’s name is always listed first. However, keep in mind that this particular dataset does not contain any coding for cross-appeals (cross-appeals are when multiple parties appeal the judgment from below).
ii. Ugeskrift for Retsvæsen is a weekly law journal published by a private company called the Karnov Group. The Supreme Court assists in editing the section containing the Supreme Court cases. This number is the reference number used by the Court when it refers to past precedent in a decision.
iii. Each case appealed to the Danish Supreme Court is given a number. This number distinguishes the case and is also used by the Danish Supreme Court website. The Danish Supreme Court’s website, where it maintains a publicly available dataset for approximately the last 10 years of cases, is located at http://domstol.fe1.tangora.com/S%C3%B8geside—H%C3%B8jesteretten.31488.aspx
iv. Technically speaking, there are several different types of orders, with kendelse representing only one type of order; however, all of the orders in this dataset are interlocutory in nature (i.e. preliminary), and the vast majority of them are in fact kendelse. Consequently, for the sake of simplicity, we refer to all orders as kendelse.
- Christensen notes that the two Maastricht cases regarding Denmark’s EU membership and the case on the Iraq War were all settled in unanimous votes (2011b). ↵
- In spite of the political controversy in Denmark over the country’s decision to join as an active participant in President George W. Bush’s “Coalition of the Willing” that invaded Iraq, Danish Højesteret Judge Christensen (2011b) points to the unanimity reached in the Højesteret’s decision on a lawsuit related to Denmark’s involvement in the Iraq War as evidence of the level of collegiality of that court. ↵
- We use the term judicial review in this study in its regular meaning in American legal circles—namely, as referring to a court’s ability to review the constitutionality of the actions of another branch of government (e.g., Marbury v. Madison 1803). The usage of this term in British English ascribes a different meaning to the concept that we do not employ in this study. ↵
- In two cases in 1965, the Danish Supreme Court did nullify the parliament’s assessment of the constitutionality of a law without nullifying the law itself (Christensen 2011a). ↵
- District court judges (the byretten) can offer to move a case directly to the Landsretten for trial when it appears to be of significant legal importance. If the Landsretten judges accept the district court offer, then the trial happens in the Landsretten, thus giving litigants an automatic appeal to the Supreme Court. Furthermore, serious criminal cases also begin in the Landsretten, and when the Højesteret hears serious criminal cases on appeal, it can only review the length of punishment and is not allowed to rule on guilt or innocence (Rytter and Gøtze 2001). ↵
- The judge who is tasked with presenting the case during these discussions and drawing up the introductory sections of the opinion is the most junior in terms of seniority (Christensen, Erichsen, and Tamm 2015). ↵
- This collaborative account, whereby even the dissenters help write the majority opinion, is based on a conversation that one of the authors had with a former Supreme Court justice. ↵
- Danish Supreme Court judges are appointed by the Judicial Appointments Committee, which was created July 1, 1999. The Judicial Appointments Committee has six members, consisting of the following: a Supreme Court justice (nominated by the Supreme Court justices), a high court judge (nominated by the high court justices), a district judge (nominated by the Danish Judges Association), a practicing lawyer (nominated by the Danish Bar Council; Advokatrådet), and two representatives of the public chosen by Kommunernes Landsforening and Dansk Folkeoplysnings Samråd (roughly translated as “Local Government Denmark” and the “Danish Adult Education Association”). The committee only makes one recommendation to fill a vacant judicial position. Since the vast majority of judges in our data set were appointed after July 1, 1999, by the committee, the likelihood that the Ministry of Justice has exercised any substantial authority over the appointment process seems low. In short, we find it difficult to justify coding whether the party in power favored the appointing justice given the current appointment process. A recent Danish Courts Administration pamphlet claimed that the Ministry of Justice had never declined the Judicial Appointments Committee’s recommendations. And although the Minister of Justice is not absolutely required to accept the nomination by the committee, no minister has failed to comply with the committee’s recommendation, at least up through 2012. ↵
- The Supreme Court appears to have an enormous influence on the appointment of new members. To begin, the Judicial Appointments Committee sends a list of candidates to the president of the Supreme Court. After the president consults with other judges on the Højesteret, he or she then provides a list of suggestions to the Judicial Appointments Committee. As noted, the committee only nominates one candidate. A nominated Supreme Court justice then has to sit through four cases and construct an opinion (though the nominee does not participate in the decision). The other justices of the Supreme Court then grade this potential judge and decide whether to accept the candidate (see Christensen, Erichsen, and Tamm 2015). The authority of the Supreme Court judges to wield what is in effect a veto on who may ascend to the Court would seem to create conditions that would allow for a perpetuation of collegiality on a future court. Candidates who do not mesh well in a work setting with the Supreme Court or are perceived as having the potential to sow discord may have a tougher time surviving this last step in the appointment process. In practice, this prospect of rejection is rare (Christensen, Erichsen, and Tamm 2015). However, Supreme Court justices do have enormous influence over which candidate the committee chooses. According to Christensen, Erichsen, and Tamm, “It is difficult to imagine that the Judicial Appointments Committee would diverge from following the recommendation of the Supreme Court” (2015, 19) Thus this appointment system should further encourage a consensual decision-making process and lessen dissent. ↵
- The Tvind case (UFR 1999 p.841 H) demonstrates that the Court, at least in theory, has some form of judicial review, though this is the only time judicial review has been exercised in the last 150 years (see Wind 2010). ↵
- In an op-ed in 2008, the Danish immigration minister stated, “Courts should not do politics, for that we have elected politicians” (quoted in Wind 2009). ↵
- For behavioral studies on countries elsewhere in Europe, see, e.g., Hanretty 2012 or Hönnige 2009; see also Dyevre 2010 ↵
- Pritchett (1948) found rates of dissent back in the 1930s as low as 11 percent for one term. However, during that time, the US Supreme Court had somewhat less control over its docket. ↵
- Cross (2007) finds dissent rates across all US appeals courts to be less than 10 percent for many types of cases (rates of dissent in criminal cases are 8.3 percent, and in economic cases, they are 6.8 percent), but in First Amendment cases, those rates are higher than 22 percent. McKenzie (2007) has found rates of dissent in special three-judge US federal courts for redistricting cases to be as high as 25 percent. Goldman and Lamb (1986) note how the DC Circuit Court of Appeals, which hears a lot of political cases, has a higher dissent rate than other appeals courts. But the norm in lower federal appeals courts and state supreme courts is one of collegiality, and this is not surprising given that the federal appeals courts and a number of state supreme courts (especially those that have no intermediate court of appeal, such as Montana) have no control over their own dockets. ↵
- A Højesteret judge does get to sit on the Procesbevillingsnævnet, but her vote is only one among a number of other members on the board. ↵
- Our decision to remove the names of these Danish justices stems from a number of concerns that require some additional explanation about the differences in legal culture and free speech between the United States and Continental Europe. At least as far back as Marbury v. Madison (1803), Americans have witnessed their courts’ involvement in political controversies. In fact, the US Supreme Court’s decision in Dred Scott v. Sanford (1857) helped precipitate the American Civil War. In the 1930s, the press labeled the conservative dissenters on the US Supreme Court as the “Four Horsemen”—referencing the biblical apocalypse—because these justices opposed President Franklin D. Roosevelt’s New Deal policies. A majority of American state judiciaries select at least some judges by some form of judicial election. In America, viewing courts through a political lens is not unusual. Consequently, in political science studies of American courts, scholars routinely and without hesitation mention the names of individual judges in academic studies when discussing their behaviors on the court. However, in Continental Europe, the idea that judges might be involved in politics is still somewhat controversial. Until recently, many European political scientists “ignored the courts” in their studies of politics, leaving the study of courts to law professors. Meanwhile, “many [European] legal scholars seemed anxious to perpetuate” the idea that courts are not policy makers but instead merely apply the law (Dyevre 2010, 298). And while some European academics are changing their perspectives on the role of courts in politics, some norms about legal culture and academic research persist. For example, in June 2019, France criminalized the statistical analysis and publication of the individual behavior and votes of judges, a step that would be anathema to American notions of free speech (see Simon Tayler, “France Bans Data Analytics Related to Judges’ Rulings,” Legal Week, June 4, 2019, https://www.law.com/legal-week/2019/06/04/france-bans-data-analytics-related-to-judges-rulings/?slreturn=20190506120236). Violators face up to five years in prison. In Denmark, while it is not criminal to analyze (or publish) the voting behaviors or names of judges, naming how a certain judge voted in certain cases without that judge’s express consent might be viewed negatively by those connected to the legal profession or legal academia in Denmark. Furthermore, even aggregating publicly available data about public officials into a single data file for public consumption could raise privacy concerns in Europe, where data privacy laws are stricter than they are in the United States. Thus given these social norms and legal concerns, and also given the fact that identifying which judge dissented the most is not particularly important to our study or final conclusions, we decided to redact the names of the individual Danish justices involved in our research for this chapter and for the accompanying data file. ↵
- These two cases deal with Article 6 of the ECHR and actually derive from the same set of facts regarding the bankruptcy of some housing cooperatives and the question of impartiality of a high court judge (at the Sø- og Handelsrettens court) after he made some comments off the bench. There was no dispute over the legal interpretation and rules of the ECHR—all judges signed off on the general guidelines. However, the dispute came in the application of the ECHR to the facts. Yet the lone judge who dissented in the case did not specifically raise the topic of the ECHR in her dissent but instead focused on the facts surrounding the judge’s actions and whether she thought such actions were impartial. ↵
- Zahle (2007) notes that the scope of a Danish Supreme Court opinion is not necessarily representative of all the issues considered by the justices. ↵
- In this logistic regression model, we tested variables to account for the judges’ characteristics (whether the judge was born in greater Copenhagen or in the periphery, the gender of the judge, the seniority of the judge on the court in number of years served, and whether the judge had background experience in public or private practice or as a law professor), types of legal cases heard by the Court (whether the case involved ECHR issues, EU law issues, tax issues, labor issues, or contract disputes), as well as institutional factors (which high court the case was appealed from, the size of the panel on the Supreme Court hearing the case, and whether the case was a final hearing on the merits of the case [dom cases] or whether the case was a preliminary procedural issue [kendelse cases]). The variable on whether the Court held oral arguments or instead considered written submissions could not be included in the regression model because there was a perfect correlation between the holding of written submissions and the absence of a dissent (see table 4). ↵
- It must also be noted, not surprisingly, that this 2009 poll was promoted by a document published by the Danish Court Administration. In a later 2015 publication of this pamphlet, the Danish Court Administration cited research in 2014 by the Ministry of Justice, which claimed that among forty-seven European countries, citizens of Denmark had the highest level of confidence in their courts. ↵
- A court of first instance is where the trial happens. If one of the high courts conducts a trial, then litigants get an automatic right to at least one appeal, which is the Supreme Court, thus bypassing the Procesbevillingsnævnet. ↵