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

34 Pages Posted: 2 Jan 2013 Last revised: 4 Feb 2013

Jeremy Waldron

New York University School of Law

Date Written: January 2, 2013

Abstract

Courts, like the US Supreme Court, make important decisions about rights by voting and often the decision is determined by a bare majority. But the principle of majority-decision (MD) for courts has not been much reflected on. What justifies judges' reliance on MD? In democratic contexts, MD is usually defended either as (i) a way of reaching the objectively best decision or (ii) as a way of respecting the principle of political equality. Howerver, it is difficult to see how either of these arguments works for the judicial case. The only other argument is one of convenience, but that seems an odd basis for majoritarian authority on a court, given the momentousness of their decsiions and given that the role of courts is to check popular majorities. The paper reflects on these and other matters and concludes that, at the very least, defenders of judicial authority should be more tentative in their denunciatiions of democratic majoritarianism.

Keywords: Condorcet, constitutionalism, courts, decision procedures, democracy, equality, judges, judicial review, majority rule, voting

Suggested Citation

Waldron, Jeremy, Five to Four: Why do Bare Majorities Rule on Courts? (January 2, 2013). NYU School of Law, Public Law Research Paper No. 12-72. Available at SSRN: https://ssrn.com/abstract=2195768 or http://dx.doi.org/10.2139/ssrn.2195768

Jeremy Waldron (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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