First of all, apologies for my silence of late. Partly, I just couldn’t find anything interesting to write about. Partly, I have been much more diligent about my dissertation-writing, and that hasn’t helped with the blogging. Actually, as I’m trying to finish a draft over the next couple of months, I’ll compensate by occasionally posting on some of the topics I write about, hoping they may be of at least some interest to my readers. Here goes.
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In a paper published last year, Jeremy Waldron asks: “why do bare majorities rule on courts?” Why is it that five judges prevail over four, for instance? The question, he points out, hasn’t been asked much, and indeed people tend simply to assume that majority voting among judges is somehow natural. It’s not, says prof. Waldron. In political theory, people are often asking why a majority of votes (whether among the electorate or among legislators) prevails over the minority. And we know of other decision-making procedures used by courts, too. A couple of States in the U.S. require supermajorities of their Supreme Courts to declare a statute unconstitutional, while civil law courts (such as the French Cour de cassation) ostensibly require their judges to be unanimous, although it seems clear enough that, behind the scenes, their judges do not necessarily reach unanimous agreement on every case, and vote when they do not. So what accounts for the common law courts’ normally using simple majority decision? Prof. Waldron examines four possible explanations, and finds all wanting.
The first is simply that allowing a simple majority to prevail is a relatively efficient way of settling disputes. That is true, says prof. Waldron, but it is not enough for a decision procedure to be efficient. After all, nobody would accept deciding cases by tossing a coin, which is even more efficient than a majority vote. This would not, prof. Waldron insists, be a legitimate decision procedure, no matter how efficient it is. Legitimacy requires “fairness” and “responsiveness” to the merits of the case the court is considering.
The second argument prof. Waldron examines addresses this concern about responsiveness to the merits. It is the claim, based on Condorcet’s jury theorem, that the majority of a panel is more likely to be right than the minority (and indeed that, as we progress in the court hierarchy and move towards larger panels, the likelihood of the majority’s being right increases). Prof. Waldron, however, is unpersuaded that the claim holds up not only for overwhelming majorities (an 8-to-1 vote, say), but also for “bare” ones ― notably, for 5-4 votes. Must we really believe that five judges are more likely to be right than four? Condorcet’s theorem says so, but “[t]here is something gimmicky about [this result],” says prof. Waldron; the theorem “is just arithmetic” and “has nothing to do with objective truth or right answers” (1716; emphasis in the original). Prof. Waldron’s concern seems to be that we cannot really know whether judges, although they are supposed to be experts, are more likely than not to get at a right answer, which is the necessary condition for the Condorcet theorem to work. Prof. Waldron points out that in politically charged matters, people tend to ascribe rather abysmal levels of expertise to the judges with whom they disagree, so that the theorem cannot make these judges’ decisions legitimate to them.
The third argument prof. Waldron considers addresses the demand that the decision procedure courts use be fair. In his view, it is not clear that elements of fairness that are often thought to justify majority decision-making in democratic contexts ― its neutrality as between the options presented, and its giving an equal weight to all the voters ― apply to judicial decision-making. Perhaps we shouldn’t want judicial decision-making to be neutral ― witness the supermajority requirements to invalidate legislation referred to earlier. And it’s not so clear that the votes of different judges are entitled to an equal weight, as the votes of different citizens are. Why aren’t more experienced judges entitled to more voting power, for instance? We seem to have just stipulated that the judges’ votes should be treated equally, and that stipulation, prof. Waldron suggests, is a weak argument for demanding that those on the losing side of close judicial votes put up with them.
Finally, prof. Waldron briefly examines a hybrid argument, according to which the judges’ equality suggests that the majority is more likely than the minority to be right. The judges of a court are equal, on this account, because they are all experts and all represent the law in the same way. But here again, prof. Waldron is skeptical “about the significance of a very narrow majority among Justices, to each of whom we have reason to defer.” (1725)
Prof. Waldron stresses that the point of his questioning is not “to embarrass defenders of judicial review” (1727) by calling into question the legitimacy of courts. On the contrary, he says,
[t]he fact that courts address matters of principle by voting tells us that there is nothing inherently inappropriate about these issues being decided in institutional contexts that are more notorious for their majoritarianism. (1727)
Voting is not something to be embarrassed about. It should be acknowledged, and integrated into our thinking about trying to resolve disagreements.
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I am not persuaded that the weaknesses that prof. Waldron sees in the arguments in favour of majoritarian decision-making by courts as serious as he suggests they are. His reasoning, it seems to me, is somewhat distorted by a focus on constitutional adjudication. The legal dispute that prof. Waldron seems to have in mind throughout his essay is a challenge, probably a rights-based challenge, to the constitutionality of a statute. But cases of this sort are, of course, a small minority, and they have some unusual features that distinguish them from much of the universe of justiciable disputes. Even if he is right that majority decision is a problematic mechanism for resolving constitutional controversies ― and, while his challenge is at its strongest there, I am not persuaded that he is ― it would not necessarily follow that it is similarly problematic for adjudication in general.
Now, I agree with prof. Waldron that efficiency alone does not justify the use of majority decision (or of any other decision-making formula) by courts. However, it is important be aware of the stakes here. Achieving super-majority consensus (or, a fortiori, unanimity) can be difficult. As I explained here, the price to pay may consist of opinions that are either extremely narrow or very vague and, either way, fail to adequately guide litigants and judges in future cases. And it may of course be impossible for judges to achieve the requisite degree of consensus even on those terms. This might not be a fatal problem for an intermediate appellate court, where the case could be remitted to a different panel, much like a case left unresolved by a hung jury is then adjudicated by a different one. But there is no s such solution (simple, but still quite costly for the parties!) available to a court of last resort where all the members hear every case. The only way for such a court is simply to silence the dissenters and hypocritically pretend that they do not exist, like the civilian courts may be doing.
This efficiency issue is directly connected to one of fairness. In the constitutional cases which Waldron seems mostly to have in mind, neutrality as between the possible outcomes might not be obviously necessary. There is at least an argument to be made that there is nothing wrong with the proposition that the impugned statute, being democratically enacted by a legislature, ought to stand unless its unconstitutionality can be demonstrated to the satisfaction of a super-majority of judges. (Actually, this argument might only make sense in the case of rights-based constitutional challenges. It is much less obvious why there ought to be a preference in favour of legislation enacted by one or the other democratically elected legislature in federalism-based disputes, or in favour of one or another democratically elected branch of government in separation of powers controversies.) But it is not at all clear why there ought to be an in-built preference for a given outcome in, say, ordinary civil litigation.
Prof. Waldron’s approach to fairness seems to more or less ignore the parties to the dispute which the court is asked to resolve. Perhaps we can question the equal authority or the “political equality” of that court’s judges. Prof. Waldron is surely right that this equality is a matter of stipulation. But what about the citizens who come before the court? Again, prof. Waldron may argue that a citizen is not the equal of a government that acts in the public interest ― though that proposition would be very controversial. But surely there is no reason to question the equality of the parties in ordinary private law disputes by telling one of them that he or she can only win by persuading a super-majority of the judges, while conversely the opponent need only persuade a blocking minority.
Focusing too much on constitutional cases may also be affecting prof. Waldron’s take on the issue of expertise. It way well be that the expertise of judges, and thus their ability to get the right answer in more than half the cases, required by the Condorcet theorem, is questionable when it comes to fundamental issues of rights. (I should note, though, that other strands in prof. Waldron’s work might seem to commit him to resist this claim. What I have in mind is his defence of a global judicial consensus on such issues as ius gentium. As my friend Maxime St-Hilaire suggests in a very interesting recent paper, it seems logical to suppose that judges should be experts in that.) However, must we push the cynicism about judges to other realms, including those in which they have long been developing the law, such as contract and tort? And if judges are really that incompetent, then their use of majority voting is really the least of our problems. We should probably put the courts out of business altogether, and certainly to put them out of the business of developing the law, at least until we are able to re-educate the judges to a minimal standard of competence. Indeed, this is exactly what prof. Waldron advocates doing with issues of rights. But I’m not sure that he is prepared to expand this approach much beyond the realm of constitutional law.
None of that might provide a very convincing answer to the person who disagrees with a five-to-four judicial decision. As an empirical matter, prof. Waldron is obviously right that such people will often not trust the competence of judges who rejected their claims. For that matter, they might not trust the competence of judges in near unanimous decisions either. I, for one, do not trust the competence of the judges of the Supreme Court of Canada when it comes to basic economics, even though they are in overwhelming agreement on the matter.
But surely the fact that the losers might not accept the legitimacy of a decision procedure isn’t enough to conclude that it really is illegitimate. Prof. Waldron himself has little sympathy for those who reject the legitimacy of the decisions of bare majorities of legislatures and argue that such decisions cannot override their natural, or constitutional, rights. He is content to tell them that majority decision is the best we can do in politics, and to admonish them that “the imposition of the disadvantage on the minority by a majority decision is not necessarily tyrannical.” (1728) I’m not sure why something like that could not be said about a judicial decision. (Indeed, prof. Waldron does apply this reasoning to judicial decisions ― but he only addresses it to the dissenting judges.)
It thus seems to me that, at least when it comes to ordinary litigation, there very good reasons ― mostly fairness considerations, but perhaps also those of expertise ― to have courts decide cases by simple majority vote. These reasons may or may not be applicable in constitutional litigation, or at least in rights-based constitutional litigation. Prof. Waldron does, I think, show that we need to make the argument for the proposition that they are. Contrary, perhaps, to his intention, his essay thus adds an important element to his challenge to the legitimacy of judicial review of legislation; it does not, however, in my view, succeed at calling into question the legitimacy of the courts’ more conventional adjudication practices.