Five to four: why do bare majorities rule on courts?

• Author: Waldron, Jeremy (New Zealand law teacher)

ESSAY CONTENTS I. WHY ASK? II. A LACK OF DISCUSSION III. DO WE HAVE TO JUSTIFY THE USE OF MAJORITY DECISION IN COURT? IV. THE MAIN LINES OF JUSTIFICATION FOR MAJORITY DECISION A. Efficiency Arguments B. Epistemic Arguments C. Fairness Arguments D. Hills's Hybrid V. SAYING MEAN THINGS ABOUT MAJORITARIANISM I. WHY ASK?

Why, in most appellate courts, are important issues of law settled by majority decision? Why, when judges disagree, do they use the same simple method of counting heads that is used in electoral and legislative politics? Some scholars call this the problem of "judicial majoritarianism," (1) though that phrase is also used (by Barry Friedman and others) to describe the inclination of judges to follow majority opinion in the wider society. (2) In this Essay I am not interested in judicial majoritarianism' in Friedman's sense. What I want to address is the decision-procedure used internally in our appellate courts.

Judges vote when they disagree and--as we all know--many important U.S. Supreme Court cases are settled by a vote of five to four among the Justices, even when the Court is reviewing legislation and deciding whether to overturn the result of a majority vote among elected representatives. Consider, for example, Citizens United v. Federal Election Commission, (3) which overturned, in part, a piece of federal legislation, the Bipartisan Campaign Reform Act of 2002. (4) The judicial vote to overturn it was 5-4; the legislative votes to enact it were 240-189 in the House of Representatives (5) and 60-40 in the Senate. (6) Majorities, everywhere you look. This leads to my question: why is bare majority decision (7)--I am going to abbreviate it as MD--an appropriate principle to use in an institution that is supposed to be curing or mitigating the defects of majoritarianism? (8) Of course, it is not only in constitutional cases that majorities rule in court. It is pretty much universal among multi-member judicial panels, in private law appeals as well as in public law, at least in our tradition. It is simply how judges decide. But that is not an answer; it is an indication of how pervasively the question arises.

So, why is MD used in judicial decision-making? And why do people put up with it? Let me say at once that my pressing these questions is not intended as a way of discrediting judicial decision-making, not even with respect to questions of judicial review. (There are ample grounds for opposing judicial review of legislation whatever decision-procedure judges use. (9)) Even for those who favor judicial review, the absence of a clear theory of judicial MD constitutes a gap in our understanding of our most important legal institution.

I think my question is worth asking, for several reasons. First, it is worth asking simply out of interest. MD in court is something we take for granted, but it would be interesting to know whether this practice has ever been made the focus of explicit justificatory argument in the history of the modern judiciary. I suspect the answer is "no," and I wonder why that has been the case, especially in light of the theoretical attention--much of it critical--that is paid to MD in democratic settings. When we consider electoral or representative institutions, we ask questions about the justification of MD all the time and we devote a lot of effort to elaborating and discussing the answers. Is the justification of MD in democratic politics epistemic? I mean, is MD an appropriate decision-procedure to use because it promises to get us more often to the right answer, e.g., to the election of good representatives or the making of good legislative choices? (10) Or is it appropriate only as a fair procedure, i.e., one that respects the principle of political equality (one person, one vote)? (11) Is MD in electoral or legislative contexts just "natural" in some sense that does not require justification? Do we use it simply because it is efficient? (12) These are good questions to ask about voting in elections and in legislatures. They are good questions, too, when we turn our attention to courts.

Here's a second reason for our interest in this question. Often defenders of judicial review say they are opposed to majoritarianism as such. But because they seem to have no trouble with MD in court, that can't really be their position. It must be democratic majoritarianism to which they are opposed, not majoritarianism as such. Opportunistically, however, they will sometimes seize on certain difficulties with majoritarian decision-making as such in order to discredit democratic majoritarianism.

Whether or not they are disingenuous in this, we ought to take these difficulties seriously. So, for example, critics of democratic majoritarianism sometimes allege that MD can lead to incoherent decision-making (e.g., through Arrow's paradox). (13) If this is so, then maybe it is also true of appellate courts using MD (unless there is something about courts that keeps their decision-making within the parameters where the paradox does not arise). Dan Farber and Philip Frickey pointed this out in their excellent study Law and Public Choice. They said that if we think (for reasons associated with social choice paradoxes) that "chaos and incoherence are the inevitable outcomes of majority voting, then appellate courts ... are equally bankrupt.... If we accept the thesis as to legislatures, we are left with nowhere to turn." (14) Justifying a given decision-procedure is partly a matter of answering what can be said against its use, so we ought to investigate whether what is said against MD in other contexts can be said against its use in court and, if so, whether such criticisms can be answered. (15)

Our question is also worth asking--this is my fourth point--because we can imagine other decision-rules for judicial settings and it might be worth considering why these are (mostly) dismissed out of hand for decision-making among judges on appellate courts. (16) For a long time the practice of trial by jury proceeded on the basis that unanimity was required to convict a criminal defendant. Nowadays in some jurisdictions--England for example--a majority verdict is sufficient, but it still must be a heavy supermajority, something like ten to two. (17) A bare majority is never sufficient (except for grand juries). Why is nothing similar envisaged for disagreements among judges rather than jurors? One might imagine a supermajority rule for judicial review. Actually, imagination is not necessary: the Nebraska Constitution ordains that the state's "Supreme Court shall consist of seven judges" and that "[a] majority of the members sitting shall have authority to pronounce a decision except in cases involving the constitutionality of an act of the Legislature. No legislative act shall be held unconstitutional except by the concurrence of five judges." (18) The North Dakota Constitution is even more stringent: it requires four out of five justices to strike down legislation. (19) These seem like good rules, embodying as they do a sort of presumption in favor of the constitutionality of legislation. (20) So why is a supermajority rule not the decision-procedure on the Supreme Court of the United States? (21)

Fifthly, there is an anomaly in the absence of theoretical discussion, given the fact that MD seems to be accepted explicitly in our political community as the basis for appellate judicial decision-making. Other legal systems--most civil law systems, for example--present only a consensus judgment and do not allow the public expression of dissenting opinions. (22) In these systems, judges do not appear to vote. Presumably there is often dissensus in their private deliberations, and maybe MD (or something like it) is used behind closed doors to determine what will be the consensus position. (23) Yet the public does not perceive the judges as voting; they do not perceive the outcome as depending upon counting heads. In contrast, in common law systems we do. And in the United States, the fact that courts use MD is the crucial assumption on which the whole politics of judicial appointments turns. This is particularly so because many areas of constitutional decision are potentially unsettled--abortion, of course, is the best-known example. The issue may be decided by MD one year, but Justices of the Supreme Court come and go, and partisans hope that a bare majority on one side of a given issue may be replaced in time by a bare majority on the other side. (24) So, for example, since 1973, it has been an important feature of presidential politics to try to secure judicial appointments to the Supreme Court that--on the assumption of MD-will either secure (for a while) or overturn Roe v. Wade. (25) The matter is always on a knife-edge and pro-choice advocates are vividly aware that one or two conservative appointments might upset the five-four balance on which they rely. In this sense, MD explicitly frames the politics of judicial nomination and confirmation. Oddly, though, despite its explicit presence as a frame, the use of MD in court is never itself made a topic of argument. In abortion politics, for example, no pro-life faction ever argues that anti-abortion legislation in the states should be protected from federal review by a Nebraska-style rule. No pro-choice faction ever argues that a supermajority should be required to overturn a precedent of long standing. People just assume MD and argue around it.

Sixthly, it would be useful to have a good account of the use of MD in court to complement and illuminate scholarly discussion of other issues about judicial decision-making. As I shall shortly show, there is very little in the law review literature addressing the exact question that I have posed. (The few exceptions will be discussed in Part III.) But there is a considerable literature on other aspects of judicial decision-making. (26) Scholars talk frequently about how judges...