Thursday, July 11, 2013


Political Mayhem Thursday: A ban on 5-4 decisions?

On Tuesday, the Waco Farmer made the following comment:

At some point in the past, I jokingly suggested a Constitutional Amendment outlawing 5-4 decisions.

But, in all seriousness, I do not think this 5-4 world is very good for us or what the Founders intended. The first Supreme Court actually had an even number of justices. And the SOP (and political genius) of the Marshall Court was unanimity (Marbury v. Madison was a 6-0 decision).
When the Court is such an obvious extension of partisan politics, I feel we are ill-served.

What an interesting idea!  One question I would have is about what happens when the vote is 5-4... do they have to reconsider it, or is considered a tie vote (meaning that the decision below stands)?  If the latter, that will give considerably  more power to the courts below-- and create different law in different places where the Circuits disagree.  This happens already, of course (when the court ties or, much more frequently, denies certiorari), but a 5-4 ban could seriously impinge on the Court's ability to resolve circuit splits.  

Is that cost worth it?  Overall, what do people think of this intriguing idea?

Proving once again my ability to compose "non-starter" PMT prompts remains unrivaled.
Come on Waco Farmer, don't be so glum! Your prompt deserves more discussion than it has yet received.

My first impression--as you will see, I have not given this much thought--is that 5-4 decisions are not a good thing. They undermine the credibility and legitimacy of the Court and they suggest a certain degree of politics inherent in the judiciary. I would not, however, ban them. In part for the reasons that Prof. Osler mentions--one of the practical functions of the Court, after all, is to resolve circuit splits, even if unpersuasively. Further, while 5-4 decisions suggest that the law is often unsettled, so too do they indicate that parties before the court will generally have the chance to prevail on the merit of their arguments (provided that they can reach the Court in the first place). They need not secure unanimity, merely majority.

In any event, I agree in principle that close votes are bad judicial policy. I would like to see less ego and more cooperation among the high nine. But, in the world we have, 5-4 is better than a neutered judiciary.
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