Jonathan Remy Nash, the Majority That Wasn't: Stare Decisis, Majority Rule, and the Mischief of Quorum Requirements

• Publication year: 2009

THE MAJORITY THAT WASN'T: STARE DECISIS, MAJORITY RULE, AND THE MISCHIEF OF QUORUM REQUIREMENTS

Jonathan Remy Nash^*

ABSTRACT

In this Article, I consider the question of precedential value in settings in which a case is decided by a majority of judges hearing a case but less than a majority of judges authorized to decide the case-a situation I refer to as a "minority majority." In analyzing the question of treatment of minority majorities, the Article makes three broad contributions to the literature. First, it disaggregates the requirements that undergird the notion that a court opinion receive precedential effect into three categories: quorum requirements, action requirements, and voting rule requirements. The Article's second broad contribution is its normative analysis of the precedent question. The Article identifies two categories of plausible responses to the problem. First, one might increase the stringency of the requirements that fall under the first two categories-that is, quorum and action requirements-in order to minimize possible minority-majority cases. Second, one might address the problem by varying the precedential effect of cases decided by minority majorities. Specifically, one might accord them "full" precedential effect, no precedential effect, narrow precedential effect, or limited precedential effect. The Article argues for having lower courts afford narrow and limited precedential effect to minority-majority decisions issued by higher courts. It also calls for further examination of the underexplored option of having minority-majority decisions issued by a court not subsequently bind that court at all. The third contribution that the Article makes is to use the discussion of the normative question to shed light on broader issues. These include the legitimacy of courts; the relationship between legitimacy and stare decisis; the proper breadth of court opinions and holdings; questions of institutional choice as to who should decide how these questions are resolved; and the importance of judicial minimalism.

INTRODUCTION .............................................................................................. 832

I. MAJORITY RULE, QUORUM REQUIREMENTS, AND THEIR

INTERPLAY ......................................................................................... 838

A. Threshold Requirements to Issuing a Decision .......................... 838

1. Quorum Requirements .......................................................... 839

2. Requirements to Take Actions with Respect to Cases .......... 846

B. Voting Rule Requirements .......................................................... 849

1. Resolution of Cases .............................................................. 850

2. Requirements for Stare Decisis Effect .................................. 854

II. MINORITY MAJORITIES ....................................................................... 859

A. Understanding the Problem ....................................................... 859

B. Solving the Minority-Majority Problem ..................................... 869

C. The Normative Question: What to Do About Minority- Majority Cases ........................................................................... 874

D. Institutional Choice .................................................................... 886

CONCLUSION .................................................................................................. 887

INTRODUCTION

Consider the following situation: Two of nine Justices do not hear or vote upon the disposition of a case pending before the United States Supreme Court (because of illness, recusal, or vacancies on the Court). In accordance with the governing statute, the case is decided by a properly constituted quorum of seven Justices,¹with four Justices constituting a majority. How much precedential value should accrue to the Court's decision?

Courts have differed in their answers to this question. Consider the views of a state supreme court, and subsequently the Supreme Court itself, with respect to the Supreme Court's 1972 decision in Fuentes v. Shevin.²There, the Court held unconstitutional Florida and Pennsylvania statutes that authorized repossession by creditors of sold goods without judicial order, approval, or participation.³The case was decided with only seven Justices participating.⁴

The majority opinion attracted a mere four Justices; three Justices dissented.⁵

Later that year, the Arizona Supreme Court declined to follow Fuentes.⁶

The majority explained that it was "reluctant to declare unconstitutional

Arizona statutes based upon a decision by less than a clear majority."⁷

In 1974, two years after Fuentes, the Supreme Court in Mitchell v. W.T. Grant Co. again considered the constitutionality of a state statute that authorized repossession by creditors of sold property.⁸This time, five Justices voted to uphold the constitutionality of the Louisiana statute at issue; four Justices dissented.⁹

The Court in Mitchell did not suggest that the fact that Fuentes was decided by merely a four-Justice majority rendered it either a nullity for stare decisis purposes, or even less of a precedent. Rather, the Court distinguished Fuentes factually and legally, relying substantially on the fact that the Louisiana statute called for greater judicial involvement than had the Florida and Pennsylvania statutes invalidated in Fuentes.¹⁰

The approach taken by the Court in Mitchell-that a decision rendered by a four-Justice majority is no different on that ground from any other majority decision-was not always the approach used by the Court. In the 1870s Legal Tender Cases,¹¹the Court declined to follow its earlier decision in Hepburn v. Griswold¹²-decided only the previous Term-at least in part on the ground that it had been "decided by a divided court, and by a court having a less number of judges than the law then in existence provided this court shall have."¹³Earlier still in the eighteenth century, the Court avoided the issue by refusing to decide cases on constitutional matters when less than a majority of the whole Court would concur in a dispositive opinion.¹⁴And, several years after Mitchell, Justice Stevens concurred in a majority opinion that distinguished an earlier 4-3 decision by the Court, explaining that "[b]ecause only four Justices . . . joined the [earlier] opinion, I do not believe it should be read as having made a substantial change in settled law."¹⁵

In this Article, I consider the question of precedential value in settings, such as these, in which a case is decided by a majority of judges hearing a case but less than a majority of judges authorized to decide the case¹⁶-a situation I refer to as a "minority majority." While it might be said that minority majorities may in fact occur under relatively limited circumstances,¹⁷the issue remains of substantial importance. For one thing, multiple health-related absences and vacancies on courts¹⁸may take place in fits and spurts.¹⁹

Especially given the low number of cases on the Supreme Court's docket²⁰and the difficulty in predicting which cases may loom large in the future as precedent,²¹the question raised by the precedential value of decisions decided by a minority majority is larger than the statistical frequency with which such cases occur. Further, the problem can arise on lower courts as well as high courts, and in state judiciaries as well as the federal judiciary. Moreover, commentators have recently noted that increases in the risk of terror-related attacks may render the government in general²²-and courts in particular²³- with fewer personnel than normal for extended periods of time. Beyond this, the issues of what constitutes a court, and what representation of court membership is necessary to bind later panels of the court and lower courts, go directly to fundamental questions of judicial legitimacy itself.

In analyzing the question of treatment of minority majorities, the Article makes three broad contributions to the literature. First, the Article disaggregates the requirements that undergird the notion that a court opinion receive precedential effect. The first category of requirements consists of quorum requirements. A quorum requirement answers the question of how many judges are necessary for the court, officially, to take any action at all. The second category consists of prerequisites for the court to take certain actions-which I shall refer to as "action requirements." An example is the requirement, discussed above and applied by the Supreme Court in the early eighteenth century, that at least a majority of the whole Court concurs in a decision on a constitutional matter before an opinion could issue. A modern example is the "rule of four," which the Court employs to decide whether to grant certiorari petitions. The last two categories of requirements consist of rules governing when, and to what extent, a court opinion counts as the opinion of the court, and is entitled to precedential effect. These requirements generally reduce to simple "majority rule," although with some important wrinkles, as we shall see below.

The Article's second broad contribution is its normative analysis of the precedent question. The Article identifies two categories of plausible responses to the problem. First, one might increase the stringency of the requirements that fall under the first two categories-that is, quorum and action requirements-in order to minimize the frequency of minority-majority cases. A second, more workable option is to address the problem by varying the precedential effect of cases decided by minority majorities. Specifically, one might accord them full precedential effect, no precedential effect, narrow precedential effect, or limited precedential effect. Here, the Article argues that minority-majority decisions should be given narrow and limited precedential weight. It also argues that the notion of having a court give its own earlier...