It's A Lovely Day Today
And beside I'm certain if you knew me
You'd find I'm very good company
Won't you kindly let me stay?
Shouldn't justice also be about certainty?
Opinions of the Supreme Court are not constitutionally required to
be decided by a majority. The Supreme Court is asked to render an opinion and
each justice may issue concurring or dissenting opinions. But we are so used to
hearing about the actual vote of the court that we have become have been become
used to thinking that dominance, a simple majority is required. In fact it was
not until the 1940s under Chief Justice Harlan Stone, that an actual tally of
the vote of the justices on each opinion of SCOTUS was released to the public.
An opinion of the SCOTUS with no dissenting opinions could have been a
unanimous vote of the justices or could have been a simple majority where none
of the dissenting justices felt compelled to issue a dissenting opinion. Dissenting
opinions are important. Dissenting opinions may contain arguments that form the
basis of majority opinions in future cases. Justice John Harlan became so
famous for his dissenting opinions that he became known as “The Great
Dissenter.” Even the infamous Dred Scott decision had a majority opinion
and 2 dissenting opinions, which meant that the decision could have been
anywhere from 5-4 to 7-2.
That the opinion of the Supreme Court should be decided
unanimously has been proposed by others[1]. But a unanimous requirement
places tremendous power in a lone dissenter. A unanimous decision may reflect
the lowest position of the majority that was acceptable to that lone member.
This may actually reflect less certainty than the current
simple majority decisions, but a court case that has reached the Supreme Court
is one where there have been questions about its certainty during the appeals
process.
The judicial system is supposed to reflect certainty, not dominance.
A case that has been decided by a single judge might be certain, but it also
may only reflect the dominance of that judge. A 5‑4 opinion is dominant, but it
is also obviously not certain. Is it possible to achieve certainty during the
process? I believe that the answer is a resounding yes. It is possible to say a
decision reflects certainty rather than dominance, and that belief is based on
the Constitution and is consistent with statistics.
The most important decisions of the nation Constitutionally (e.g.
overriding a veto, declaring war, approving amendments to the constitution,
etc.) require a two-thirds vote of the Congress. An amendment to the
Constitution requires ratification by three-fourths of the states after
approval by Congress and the President. Statistics would agree that in a normal
distribution 68 percent of all of the opinion of group will occur by the mean
plus one standard deviation, while a simple majority only requires one member
more than the mean. It is not possible to achieve a unanimous decision in a
normal distribution. Even in particle physics, the most that certainty is
generally expected is the mean plus 5 standard deviations, i.e. not 100% but
99.99994%. It is the responsibility of the Chief Justice to decide whether an
opinion shall be issued, is certain.
To ensure that Supreme Court opinions reflect certainty for the
Nation, rather than merely dominance within the Nation, it is proposed that an
opinion of the SCOTUS NOT be issued if there is merely a
simple majority of Justices supporting that opinion, but rather that a
two-thirds super-majority of the Justices supporting that opinion be required.
Given the current nine members of the Supreme Court that means that an opinion
would be determined to be certain, and not merely dominant if there is a 6-3
vote. (a 6-3 vote is two-thirds, 66.7% of the members. Ideally,
according to statistics a 7-2 vote would be better in that it reflects more
than 68% of the members.)
To make it clear that dominant opinions are never acceptable, it
is recommended that one justice be added to the Supreme Court such that a split
vote is a possible outcome where there would be NO dominance. In this case a
7-3 vote would satisfy the strict certainty of a normal distribution.
[1] Orentlicher, David. (2022). Judicial Consensus: Why the Supreme Court
Should Decide Its Cases Unanimously. Conn. L. Rev., 54,
303. Accessed on June 19, 2023, at
https://scholars.law.unlv.edu/facpub/1362/
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