David Orentlicher (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted Judicial Consensus (31 pages) on SSRN. Here is the abstract:
Like Congress and other deliberative bodies, the Supreme Court decides its cases by majority vote. If at least five out of the nine justices come to an agreement, their view prevails. But why is that the case? Majority voting for the Court is not spelled out in the Constitution, a federal statute, or Supreme Court rules.
Nor it is obvious that the Court should decide by a majority vote. When political decisions are made, it makes sense to follow the majority. The general will of the public ought to govern. But judicial decisions are not supposed to reflect popular sentiment. Rather, they must respect the rule of law. Thus, on many matters, courts override the preferences of the majority to protect the rights of the minority.
Moreover, juries in the United States decide their cases unanimously. As the Supreme Court has recognized, it is important for jury decisions to emerge from a deliberative process that represents the views of the entire community. For the same reasons why it is important for juries to decide cases unanimously, so is it important for the Supreme Court, as well as other appellate courts, to decide cases unanimously. And deciding cases by consensus would not be new for the Supreme Court. For most of its history, it operated under a norm of consensus, with dissenting opinions being written infrequently.
This article will make several points: (1) Majority voting does not make sense on an appellate court, (2) majority voting on an appellate court violates principles of due process, and (3) unanimous decisions promote the quality and fairness of judicial decision-making by ensuring that decisions reflect a broad range of perspectives. In addition, (4) unanimous decision making reflects the original intent of the Framers, (5) it is consistent with Supreme Court precedent, and (6) the experience of the Supreme Court, juries, and other decision-making bodies indicates that a rule of unanimity can work well.
I’m skeptical (to put it mildly) that this proposal is required by anything in the Constitution’s text or history, but I doubt it’s prohibited either. And anyone who’s serious about judicial restraint should give it some thought (indeed, I’m not sure if there are any substantial restraint-based arguments against it, or at least against a version requiring a high supermajority).
On a quick look, I did not see in the paper much discussion of the default — that is, what would happen if the appellate court could not agree. I would think necessarily the default would need to be, in constitutional litigation, that the challenged governmental action would not be invalidated. I can’t think how it would work otherwise — either it would give enormous power to district judges (if their decisions could be overturned only unanimously), which seems odd, or it would pose enormous constraints on government (if the government’s position could only be sustained unanimously). But understood as a requirement that government action could be found unconstitutional only if the appellate court unanimously (or perhaps by a high supermajority) agreed, then it seems an excellent way to implement judicial restraint.
Of course, originalists likely would not support such a rule, because originalism is different from judicial restraint. Originalists would not see a default in favor of the government as attractive across the board: sometimes the government should lose, even if not everyone sees it that way. (They might see it as a palatable compromise, however.)
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