Five to Four: Why Do Bare Majorities Rule on Courts?

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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? …