Constitutional Process: A Social Choice Analysis of Supreme Court Decisionmaking.

• Author: George, Tracey E.

CONSTITUTIONAL PROCESS: A SOCIAL CHOICE ANALYSIS OF SUPREME COURT DECISIONMAKING. By Maxwell L. Stearns. Ann Arbor: University of Michigan Press. 2000. Pp. ix, 420. $65.

Bismarck famously remarked: "Laws are like sausages. It's better not to see them being made." (1) This witticism applies with peculiar force to constitutional law. Judges and commentators examine the sausage (the Supreme Court's doctrine), but ignore the messy details of its production.

Maxwell Stearns has demonstrated, with brilliant originality, that the Court fashions constitutional law through process-based rules of decision such as outcome voting, stare decisis, and justiciability. Employing "social choice" economic theory, Professor Stearns argues that the Court, like all multimember decisionmaking bodies, strives to formulate rules that promote both rationality and fairness (p. 4).

Viewed through the lens of social choice, the Court's constitutional precedent becomes more coherent. Stearns aims to present an account that is "positive" (i.e., justifies the Court's rules based upon the historical and case evidence) rather than "normative" (i.e., criticizes the substantive content of those rules) (pp. 6, 63-67). In particular, Stearns logically explains the decisions involving "standing" (i.e., whether a plaintiff has the right to sue), which legal scholars have uniformly concluded are irreconcilable and thus reflect either intellectual sloppiness or unstated political motives.

Professor Stearns's thesis is radical, for it compels us to look at constitutional law in an entirely new way. At the same time, however, his approach is conservative because it depends on the pre-Realist premise that constitutional "law" consists of binding legal rules that the justices try to interpret and apply in a principled way. Unlike many academics, Stearns "takes the justices' own statements of doctrine, as expressed in their opinions, quite seriously" (p. 5) and attempts to justify them using social choice analysis. (2)

Stearns displays a unique ability to convey extremely complex legal, economic, and political ideas in a clear and precise manner. His work is especially valuable because it is accessible to scholars in a variety of fields, and it will force them to reconsider their analytical frameworks.

Perhaps the greatest strength of Stearns's book is that he presents a grand unified theory of the Court's rules of constitutional process and the resulting development of doctrine. This strength can also be a weakness, however, because he tends to read precedent and the historical evidence to fit his thesis, even when other explanations might be more persuasive.

In this Review, we will explore two such alternatives, grounded in political science and constitutional theory. We hope to show that these disciplines are at least as effective as economics in illuminating constitutional lawmaking.

1. POSITIVE THEORIES OF APPELLATE COURT DECISIONMAKING

   Positive models of Supreme Court decisionmaking begin with the rational choice paradigm: that individuals make decisions that they believe are most likely to lead to their preferred outcomes. Political scientists who study appellate courts have debated the relevance of a court's collegial nature to its decisions. Steams adds to this literature by focusing on a classical economic theory of collective decisionmaking, Arrow's Theorem. (3) He uses Arrow's voting paradox in both its normative sense (as Arrow originally proposed it) and its positive sense, as it has been employed by social scientists ever since. (4)

   Initially, we consider the central aspect of Arrow's theory of social choice upon which Stearns relies to create his process model. We then examine whether existing political science accounts of Court decisions provide a sounder, more tractable model.

   1. Arrow's Insights into Group Decisionmaking

      1. Introduction

         Scholarship built upon Arrow's Theorem (or its descendants) has traveled under various banners, including public choice or social choice theory, (5) but shares a heritage in the work of Arrow and Duncan Black. (6) Arrow proved that no collective decisionmaking process could both satisfy accepted notions of fairness and produce a consistent or "rational" outcome, that is, one that would meet the requisites for rationality in individual decisionmaking. (7) Most notably, he demonstrated mathematically that aggregating collective preferences according to democratic methods, such as majority rule, will not always yield a single, transitive collective preference. (8) As a result, the decisionmaking process "cycles," moving through a series of options without ever clearly selecting one. The result is the classic "voting paradox," first recognized by the Marquis de Condorcet in 1785 but largely forgotten until Arrow revived it. (9)

         Cycling is easy to illustrate. Imagine three individuals, A, B, and C, who must make a group decision among three options. A ranks her preferences 1, 2, 3; B ranks his preferences 2, 3, 1; and C ranks her preferences 3, 1, 2. In a pairwise vote between choices 1 and 2, choice 1 prevails. In a vote between choices 2 and 3, choice 2 prevails. If the group's preferences were rational, it would prefer choice 1 to 3, that is, its preferences would be transitive. In a vote between 1 and 3, however, choice 3 prevails. (10) If all three individuals vote sincerely in accordance with their preferences, there is no rational means of choosing one option, and thus there is no "Condorcet winner." No minimum-winning majority can withstand a challenge by the losing participant, who can always entice one member of the majority to support a different option. For example, if choice 1 prevails, B can persuade C to form a new majority in favor of choice 3. If choice 3 prevails, A can persuade B to shift to choice 2, and so forth. The majority cycles.

      2. Arrow's Theorem in Legal Scholarship

         While many social scientists immediately began to utilize Arrow's work on collective decisionmaking, (11) law professors were not as quick to appreciate its relevance to their studies. Beginning in the mid-1970s and picking up speed in the last decade, (12) legal scholars have sought to evaluate law and legal structures by considering how institutional characteristics influence collective choice. (13) Since 1986, more than 100 law review articles have included "social choice" or "public choice" in their titles, and more than 400 articles have cited Arrow's classic text, Social Choice and Individual Values. (14) Within the past decade, law journals have devoted entire issues to articles on the application of choice theory to the study of law. (15)

         Frank Easterbrook was the first legal commentator to view the decisionmaking of collegial courts from a social choice perspective. (16) Since then various legal scholars have recognized that multijudge appellate courts may be subject to decisionmaking flaws predicted by social choice theory and have considered the resulting implications for normative adjudication theories. (17) Lewis Kornhauser and Lawrence Sager, for example, have drawn on Arrow's Theorem to examine whether the features of collegial courts satisfy the normative goals of adjudication. (18) David Post and Steven Salop have argued that such courts should adopt a system of "issue voting" as opposed to "outcome voting" to overcome the voting paradox. (19) Stearns contributes to this important body of work.

      3. Stearns's Adaptation of Arrow's Theorem

         In previous articles, Stearns demonstrated that he is particularly adept at articulating and applying the precepts of social choice theory. (20) His delineation of the voting paradox in the current book is outstanding and will be a great resource for anyone seeking to understand Condorcet's and Arrow's ideas (pp. 42-52, 81-94). Stearns creatively elucidates a number of complicated social choice concepts, making them both accessible and interesting. Perhaps his best effort is his modern revision of Shakespeare's tale of King Lear to illustrate the "empty core" problem. (21)

         The driving force of Stearns's book is his argument that appellate courts, as collective decisionmaking bodies, are governed by Arrow's Theorem and therefore are prone to cycling. He presents a group of Supreme Court procedural doctrines that he maintains can be explained and justified as responses to cycling and related social choice conundrums. For example, outcome voting, rather than issue voting, ensures that the Court will reach a decision even when no stable majority of justices can agree both on the means (issue) and the ends (outcome) in a particular case (pp. 97-111). In instances where only outcome voting would lead to a decision, the narrowest grounds doctrine offers a fair interpretation of the Court's holding in the case because it limits the ruling to the position that was at least the second-best choice of a majority of justices (pp. 124-29).

         Stearns scrutinizes a handful of cases in order to prove that this social choice account of outcome voting and the narrowest grounds doctrine is an accurate positive theory. His reasoning, however, is primarily normative, not explanatory. Most significantly, he does not prove that outcome voting developed to respond to cycling problems; in fact, he does not offer a historical account for its emergence (although it seems an obvious default rule). Rather, Stearns provides a justification for keeping the outcome voting rule. The narrowest grounds doctrine also appears to have been adopted for largely pragmatic reasons: judges do not know ex ante their relative position in future cases, and therefore they select a rule that is least likely to be completely contrary to their future decisions. Rational choice theory offers the best explanation for this selection. (22) Again, Stearns sets forth a compelling rationalization for the narrowest grounds doctrine, but not an explanation for it.

         Stearns correctly argues that the most important rules...