Judicial Consensus: Why the Supreme Court Should Decide Its Cases Unanimously

UNLV William S. Boyd School of Law Legal Studies Research Paper

Connecticut Law Review, Forthcoming

40 Pages Posted: 7 Apr 2020 Last revised: 1 Mar 2022

See all articles by David Orentlicher

David Orentlicher

University of Nevada, Las Vegas, William S. Boyd School of Law

Date Written: April 5, 2020

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. In particular, unanimous decisions would be better decisions, and they would be fairer decisions. They would be better because they would take into account a broader range of relevant perspectives, and they would be fairer because they would reflect the views of both sides of the ideological spectrum. 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, which have gone almost entirely unrecognized to date: (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.

Keywords: judicial decisionmaking, due process

JEL Classification: K10

Suggested Citation

Orentlicher, David, Judicial Consensus: Why the Supreme Court Should Decide Its Cases Unanimously (April 5, 2020). UNLV William S. Boyd School of Law Legal Studies Research Paper, Connecticut Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3569058 or http://dx.doi.org/10.2139/ssrn.3569058

David Orentlicher (Contact Author)

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

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