The Economics of Unanimity

It is often thought that judicial unanimity is a valuable commodity. Chief Justices bang heads, twist arms, and break legs in order to get their courts to produce more of it, but they don’t always succeed, and unanimity remains at least somewhat scarce on the U.S. and Canadian Supreme Courts (although more on the former than on the latter, which has been unanimous in judgment in between two thirds and three quarters of its decisions rendered since 2010). The unusually high output of the unanimity production line at the US Supreme Court this year has produced much commentary. But how much do we really know about the economics of unanimity? What is it worth? More precisely, what is its purchasing power? How much does it cost? And is the cost worth what you get in return?

In the New York Times, Adam Liptak reviews some academic attempts to answer these questions (in the American context), including a recent paper by Cass Sunstein. The takeaway from this literature seems to be that unanimity is worth less than is commonly assumed. Mr. Liptak notes that people, including judges, often think that “[t]he public may be less likely to accept and follow decisions that would have gone the other way with the switch of a single vote.” Yet experiments ― and perhaps even historical experience ― do not bear out this intuition. And while another claim about the value of unanimity, that unanimous judgments are less likely to be reversed, is apparently supported by the facts, the number of overturned decisions is so small to begin with that this value is more illusory than real. Finally, although unanimous judgments might in theory make for a clearer legal landscape, they often fail to deliver on this promise too. Mr. Liptak points out that

Supreme Court opinions are the product of negotiation and compromise, which is why they can read as if written by a committee. A nine-member committee does not seem likely to produce crisper prose than a five-member one.

At the Volokh Conspiracy, Jonathan Adler chimes in, writing that

[t]he cost of broad agreement may be an opinion that speaks in generalities and pushes aside the potential points of disagreement.  Concurrences and dissents often draw clearer lines and are more analytically coherent than majority opinions. The sorts of opinions that result from efforts to achieve greater unanimity are different from those that merely seek the median vote.

At the same time, coalescing around a narrow holding allows the Court to avoid premature resolution of a potentially divisive question, perhaps leaving it to be resolved when it can be resolved in a unanimous way or even putting it off indefinitely.  This is itself a virtue of judicial minimalism, according to some.

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These are useful observations, so far as they go, but I think some additional clarifications are necessary for us better to assess the value (or lack thereof) of unanimity.

For one thing, we need to be clearer about what it is that we are talking about. Unanimity in judgment does not necessarily mean unanimity in reasoning, and indeed in some of the recent decisions of the U.S. Supreme Court (for example in NLRB v. Noel Canning, a case considering the constitutionality of President Obama’s “recess appointments”) unanimous judgment masks sharp disagreements about the law between a majority and a concurrence. In such cases, it seems unreasonable to expect the putative effects of unanimity, whether positive or negative, to manifest themselves.

For another, even unanimity in opinion can be of different sorts. While some unanimous decisions will indeed be the products of laboured compromise, and thus be likely to exhibit the flaws described by Mr. Liptak and prof. Adler, others are in fact the products of genuine agreement about the legal principles involved and their application. Probably most decisions of intermediate appellate courts (which have unanimity rates much higher than Supreme Courts, both in the U.S. and in Canada) are of this sort, because they are rendered in “easy” cases where the law is relatively clear. Some decisions of Supreme Courts, at least, are of this sort too. I don’t know American law well enough to give examples, but they are plenty this side of the border ― among the more notable recent cases, Reference re Securities Act, 2011 SCC 66, [2011] 3 SCR 837, comes to mind. Of course, it might not be easy for external observers to distinguish unanimity of agreement from the unanimity of compromise (and a single decision might involve both), but it seems likely that the former sort is more valuable, at least for clarifying the law (though not if one values unanimity for requiring narrow rulings!) ― but also less susceptible of deliberate manufacture by a court.

As for the value of unanimity as a means of exchange for acquiring legitimacy, I wonder whether an inquiry into the value “ordinary” people attach to it is the relevant one. The issue here does not concern unanimity alone. Rather, given well-documented and pervasive political ignorance, I wonder how much people outside the legal and political communities notice and care about judicial decisions at all, and to the extent that they do, how much their views of these decisions are influenced by what politicians (and perhaps experts) tell them. It is possible, and indeed likely, that the perceived legitimacy of the vast majority of, and perhaps of all, judicial decisions depends on the opinions of a certain class of journalists, lawyers, and politicians. If that is so, then an empirical assessment of the value of unanimity should look at the views of such people, and not of random citizens.

Finally, we might need a fuller picture of the transaction costs involved in achieving unanimity. Presumably, producing a decision that is unanimous in reasoning ― at least when unanimity of of compromise rather than of agreement is involved ― takes time and effort, which might, in theory, otherwise be expended on producing better decisions in other cases. It also, by definition, requires individual judges to sacrifice the opportunity to implement or even express their views about the law, and prevents disagreement from being aired in the open. It seems at least plausible that this will, for lack of a better term, undermine the morale of the court or at least of the more independent (or headstrong) judges. I don’t know, I’m afraid, whether this is a real problem (perhaps readers who have clerked at the Supreme Court can tell!). Judges surely know that they sometimes need to “take one for the team”, though nobody, I imagine, like to have to do that very often. In any case, the possibility is worth considering.

All that to say that, as with other commodities, unanimity doesn’t have any “true” value. How much it costs and what it can buy depends on a number of contextual factors. A quest, or demands, for unanimity that ignore these factors will likely be misguided, and perhaps pernicious.

Says Who?

Exposing the secrets of the powerful is all the rage. And there are different ways of doing that, not all of them involving spending weeks in the transit zone of the Sheremetyevo Airport. As a fascinating recent paper shows, one of these more comfortable ways involves analyzing the language of judicial opinions in order to deduce the authorship of opinions not attributed to one judge in particular, which courts, for a variety of reasons, prefer not to reveal.

The analysis is done by running a large number of judicial opinions of which the author is known through an algorithm that identifies the patterns in the use of words and short phrases by each judge. (In the lingo, these words and phrases are known as n-grams.) The algorithm is then able to analyze similar patterns in an additional opinion and to identify, among the judges whose language it has previously studied, the opinion’s most likely author. (It all seems rather more complicated than I’ve made it sound. But I doubt that I can summarize the technical details effectively and usefully. If you care for them, just have a look at the paper ― it’s not very long.)

As with all secret-piercing endeavours though, the ‘what for’ question is arguably more important than the ‘how’. The paper’s authors offer some thoughts on it, which mostly come down to the idea that knowing the author of a judicial opinion is important if judges are to be held accountable. They cite Thomas Jefferson and James Madison (in both cases, when they were Presidents) who criticized Chief Justice Marshall’s tendency to hide the true authorship of the decisions of the US Supreme Court (as well as the votes by which these decisions were arrived at). And they point out that, alarmingly in their view, some of the very important decisions of the US Supreme Court feature opinions that are attributed to the Court itself rather to specific judges. (These opinions are identified as being “per Curiam” even though there may also be concurring and even dissenting opinions.)

If they are right, we in Canada have a problem ― and need somebody to replicate their study for our own Supreme Court a.s.a.p. For over 30 years, it has had the habit of issuing opinions “by the Court” in the most important and controversial cases. (It is worth noting that, unlike in the United States, an opinion will only be identified as that of the Court if it is unanimous. But even when the court is unanimous, the usual practice is for it say that its judgment is delivered by a specific judge, the author of the sole opinion. The cases I am talking about name the Court itself as the author.) These cases include, among others, the Senate Reference, which prevented unilateral reform of the Senate by the Trudeau government; the Manitoba Language Rights Reference striking down ― and keeping alive ― all of Manitoba’s laws for almost a century; the Secession Reference, which set out the conditions under which Québec may legally separate from Canada; Khadr II,  declaring that Canada violated Omar Khadr’s constitutional rights, but refusing to order the government to request his re-patriation from Guantanamo; and, most recently (if memory serves well), the Securities Reference, which prevented the setting-up of a federal securities regulator. We can also add to this list the Patriation Reference, in which the two majority opinions (one on the constitutionality of unilateral patriation of the constitution as a matter of law, the other on its constitutionality as a matter of convention) were signed by seven and six judges respectively, not all of whom contributed to their writing in equal measure. And I think it’s a pretty safe bet that when the decision on the constitutionality of the proposed Senate reform is released, it will feature a single opinion signed by “the Court.”

But are such opinions really as bad as the study’s authors suggest?  Do they suffer from “poor quality … , evasion of difficult issues, lack of transparency to the public” (508)? I cannot say anything about the American situation, but in Canada, I believe that the opinions of “the Court” are no worse than signed opinions. The Manitoba Reference is, in my view, among the Court’s best and most brilliant decisions; the Secession Reference and the recent Securities Reference are very solid too. (I know many people will disagree about the Securities Reference, but the copious criticism it has been met with is invariably based on considerations of policy, not law.) Khadr is a more problematic decision, in which the Supreme Court is arguably guilty of “evasion of difficult issues,” but it was taken in the context of the government’s thinly veiled threats to disobey the Court, and it just might have been the best outcome possible under those circumstances. Khadr also illustrates the raison d’être of the opinions “by the Court” ― they allow the Supreme Court to speak as an institution, to demonstrate solidarity in the face of hostility, real or apprehended, of the executive and the legislative branches of government. In this way, they serve the Rule of Law more than they detract from it.

Despite all that, it is simply very tempting to find out whatever it is that we do not know; all the more so if someone is deliberately keeping the knowledge from us. The mixture of incorrigible human curiosity and unreflecting search for transparency mean that any secret that can be exposed eventually will be. As Isaac Asimov put it in a short story, “The Dead Past” (which I discussed here), “[h]appy goldfish bowl to you, to me, to everyone.” That includes, I suppose, the authors of the study. The seven of them, presumably, didn’t all actually write the article. I wonder if they’d be happy for someone else to use their methods on it to find out who did.

H/T Josh Blackman.