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May 25, 2006


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The whole article, printed in the LA Times, can (and should) be read here:


I think that Prof Sunstein is on to something here. If the Court were to take more cases but issue shorter, more case specific opinions, it would point the way out of the thicket of politics the Court is immersed in, We might actually return to a day when the Court decided cases, and every vacancy wasn't treated as a major political struggle. In terms of a baseball metaphor, the court needs to stop swinging for home runs and try for singles instead - less excitement but fewer strike outs.

This is a subject that could even be worth explicating on further.


I also support more consensus within the Court. We all believe in democracy, don't we? Why does the Supreme Court allow simple majorities to decide on the contitutionality of a law with a simple majority (51%) leaving the possibility of large percent (49&) of minority dissenters. Is that equal and fair representation? No. Well, what would be fair? What is the smallest number of people where a majority can be possible? One person is not a group. Two people is a group, but cannot create a majority (unless they both agree). But can we reasonably expect to ever get 100% agreement? Hardly. Well, three people is a group and you can have a majority with a reasonable small minority. 2/3's majority is used in most democratic processes due to this very fact. Why not use the same 2/3's majority rule in the Supreme Court? There are 9 judges, so a 6-3 decision or better should the threshold. This 5-4 business has got to stop as it leaves one judge with too much power. What do you think?

The Law Fairy

I'm not quite sure I understand the democracy point, Bob -- a simple majority is generally enough in a democracy for most things. It's only in special circumstances where more than 51% is required (e.g., to end debate on the Senate floor and move to a vote, to convict the president upon impeachment by the House, to amend the Constitution, etc.). If you're drawing an analogy to constitutional amendments, the analogy might be fair but it also invokes only one particular understanding of the operation of the court (that is to say, rather than saying what the law *is*, the court in fact changes the law -- which in practicality might be true, but if legally we deem this so, it seems like we're changing the constitution right there).

One problem I see with your proposal is that it negates any role of the judiciary in protecting the rights of the minority. If you take the view that one of the court's duties is to ensure the minority's rights are not trampled on by the majority, then requiring a supermajority within the court seems to dampen its ability to do so. As members of the court, too, are only human, requiring a supermajority in effect requires that an injured minority have a stronger hold, ideologically, on enough people that the court will be persuaded to rule on its side.

I'm also not convinced that more agreement means narrower decisions. I remember my 1L civ pro days of grappling with the multitudinous opinions in Asahi, which had a majority result but no majority opinion. The court was so divided that only the very narrowest precedent can be taken from the decision. Granted, plurality opinions are rare -- but I think their existence weighs against deeming near-unanimity as narrowing a holding.


"If you take the view that one of the court's duties is to ensure the minority's rights are not trampled on by the majority, then requiring a supermajority within the court seems to dampen its ability to do so."

Actually, requiring a supermajority protects minorities far better than a simple majority. The larger the majority required, the smaller the affected minority. An unanimous decision eliminates any will of the majority against any minority. It is the most protective of minorities, but also too burdensome. Simple majority requirements are just plain undemocratic; it leaves 49 out of 100 people at the mercy of the others. I wish we could amend the constitution to require 2/3rds majority in all voting instances.

The Law Fairy

Bob, that's not the kind of minority I'm talking about. Let's say 78% of Americans think that separate but equal is okay in public schools. Let's further say that roughly half the court is inclined to agree with them, since the justices, being only human, are subject to the same biases and prejudices as many in the social majority. But let's say there's a swing voter who coul dbe persuaded one way or the other if the arguments were good enough. Under your system, the actual minority we're concerned about (22% or more of the American public) is still harmed. Under the current system, the judiciary is able to step in and prevent the American majority from harming the minority.



Your saying the same thing I am, you're just looking at the vote from the opposite direction. It depends if the vote is to uphold a law or to negate a law. So, looking at it from your point of view (looking to negate a law), maybe we should allow a 1/3 consensus to overturn a law? That would protect 33 of 100 citizens. Of course, we could do it the Japanese way and only require one vote to overturn the law (ie. 100 percent consensus to keep a law).


One way of looking at the broad guidance/minimalist restraint contrast is that the former could tend to facilitate ex ante risk allocations in social transactions (defined very broadly to include all kinds of valuable exchanges) among those who pay attention to what the Courts do (or, which is at least as likely, between those who pay attention and those who do not - e.g., banks and their depositors); while the latter might tend to inhibit such transactions, since participants in transactions that are not clones of what happens to have been treated in some narrow opinion will be left severally hoping that ex post evaluation of each of his or her own conduct will pass for lawful.

But if that is right, doesn't the other contrast, between unanimity and division on the Court, tend to sort itself out just the opposite way with respect to ex ante/ex post allocations of transactional risk and loss?

If the courts were reliable about being nearly unanimous on a wide range of issues relevant to transactional life, ex ante allocations of legal risk would be encouraged, while the proliferation of obscure doctrinal points could reduce the requisite confidence for such robust dealing.

Chief Justice Roberts' plea for a new emphasis on both solidarity and minimalism therefore would seem to be directed towards producing something other than a coherent effect upon transactional behavior, since his choice of emphasis upon the respective sides of the two contrasts he invokes would tend to pull in different directions.

I have no other ideas as to what effects on the conduct of our national life the Chief Justice may be aiming at. If it were only to make life at the Court more sweetly reasonable, it would be hard to blame him.

Joan A. Conway

Now we are not content that there is some room for doubt or political dissent among our Justices, who are basically Republican appointee(s).

We now want them to be a certain type of Republican that defines itself based on the same reading of the rule of law, without any interpretation by our most learned men and women.

Come on now Justice Roberts are you robbing political opinions from having their day in court in close decisions.

What kind of leadership is this that a Chief Justice tells his colleagues what, how, and why they should think on any given issue.

Let us not be accused of being Modernists living in the 21st Century, with wide gaps between those over 45 and those under 45, because of technology, global competition, and educational deficiencies.

Let's give our inferiors the rule of law, as we once knew it when it was written over 200 years ago.

Our fathers knew best!

No post-revolution amendments, no current reading of interstate commerce, and no privacy issues to contend with in Chief Justice Roberts court.

It gags its own justices!

We are now heading into the dark ages under this forced counter-enlightment logic.

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