For Judicial Majoritarianism
88 Pages Posted: 26 Nov 2019
Date Written: November 22, 2019
Why are some of the most important legal questions in our society — like the legal status of gay marriage, the right to unionize, the limits of campaign finance, the extent to which firearms can be regulated, abortion, and the outcome of a presidential election — decided by a bare majority 5–4 vote on the Supreme Court? The debate on judicial review has unearthed myriad compelling reasons for the judiciary to be empowered to consider and deliberate on these issues and arrive at consensus on the best way forward. But the questions persist of whether and why we should allow the judiciary to resolve those issues in a simple majority vote — where such a vote may neither demonstrate deliberation nor consensus.
This Article provides a comprehensive justification for judicial majoritarianism — i.e., the use of majority voting on an appellate court. To do this, the Article first constructs a framework for analyzing various types of court decision procedures, by identifying all of the different desiderata, or “virtues,” of a decision procedure. The Article then identifies the plausible alternatives to judicial majoritarianism and scores each of them on the identified set of virtues. By comparing the performance of the different decision procedures on these virtues, the Article sets forth a defense of judicial majoritarianism.
The Article then applies the framework to four scholarly proposals to reform the U.S. Supreme Court (and its instantiation of judicial majoritarianism):
(1) employing a supermajority rule on the Court for invalidating federal statutes;
(2) balancing the Court with political appointees;
(3) modestly expanding the Court and using panels of Justices instead of a single group of Justices sitting en banc; and
(4) dramatically expanding the Court and using panels of Justices drawn from the Courts of Appeals.
The Article provides a comparison of judicial majoritarianism versus these alternatives, concluding that there are compelling benefits to the Court’s judicial majoritarianism and that any of its deficits compared to the alternatives are marginal. Though these proposals seek to reduce the effect of partisanship on the Court by shifting from judicial majoritarianism, the Article contends that the virtues of judicial majoritarianism sound in core values of the law, that protect against the effects of partisanship.
Keywords: Judiciary, Judicial Structure, Judicial Voting, Voting Procedures, Judicial Majoritarianism, Majoritarianism, Judicial Reform, Supreme Court, Appellate, Court Structure
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