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

303

CONNECTICUT

LAW REVIEW

VOLUME 54 APRIL 2022 NUMBER 2

Article

Judicial Consensus: Why the Supreme Court Should

Decide Its Cases Unanimously

DAVID ORENTLICHER

Like Congress and other deliberative bodies, the Supreme Court decides its cases

by majority vote. If at least five 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 the public

votes on a ballot measure, it typically makes sense to follow the majority. The general

will of the electorate 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 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 is more faithful than majority voting to 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 would work well.

ARTICLE CONTENTS

INTRODUCTION .................................................................................... 305

I. THE VIRTUES OF UNANIMOUS

DECISION-MAKING ....................................................................... 308



II. JUDICIAL UNANIMITY AND

THE DUE PROCESS CLAUSE ......................................................... 317



III. JUDICIAL UNANIMITY AND

ORIGINAL INTENT ......................................................................... 325



IV. JUDICIAL UNANIMITY AND SUPREME

COURT PRECEDENT ...................................................................... 328



V. MAJORITY RULE LACKS NORMATIVE

JUSTIFICATION .............................................................................. 330



VI. POTENTIAL CONCERNS WITH

JUDICIAL UNANIMITY .................................................................. 331



CONCLUSION ........................................................................................ 344

Judicial Consensus: Why the Supreme Court Should

Decide Its Cases Unanimously

DAVID ORENTLICHER

INTRODUCTION

Like Congress and other deliberative bodies, the Supreme Court decides

its cases by majority vote.

If at least five 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

the public votes on a ballot measure, it typically makes sense to follow the

majority.

The general will of the electorate 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, majority voting on the Supreme Court exacerbates the

polarized politics that plague the United States. When a conservative or

liberal majority can impose its views on the country, it gives each side of the

ideological spectrum even greater incentive to fight for control of the Oval

Office and the Senate so that side can control the judicial appointment

process. Or elected officials might manipulate the appointment process to

ensure a Court majority for its side, as when U.S. Senate Majority Leader

Mitch McConnell blocked the appointment of Merrick Garland in 2016 and

Judge Jack and Lulu Lehman Professor of Law, William S. Boyd School of Law, University of

Nevada, Las Vegas. MD, JD, Harvard University. I am grateful for comments by Peter Bayer; Eve Hanan;

Michael Miller; G. Michael Parsons; Ronald Krotoszynski; Barry Solaiman; Samuel Thumma; Robin

Fretwell Wilson; and participants at the Sixth Annual ACS Constitutional Law Scholars Forum (2021);

the 2020 Global Conference on Constitution-Making and Constitutional Change, University of Texas at

Austin School of Law; the Tenth Annual Constitutional Law Colloquium, Loyola University Chicago

School of Law (2019); and the 2019 conference on Dignity, Tradition, & Constitutional Due Process:

Competing Judicial Paradigms, University of Nevada, Las Vegas, William S. Boyd School of Law. I also

am grateful for the research assistance of Jacqueline Alvarez, Youngwoo Ban, Lena Rieke, and Greer

Sullivan and the editorial assistance of Marla Katz, Kaylee Navarra, and Katie McKeon.

To be sure, the U.S. Senate employs a filibuster rule that requires a sixty-vote supermajority to

end debate on a legislative proposal. About Filibusters and Cloture, U.S. S

ENATE, https://www.senate.gov

/about/powers-procedures/filibusters-cloture.htm (last visited Nov. 26, 2021). However, the vote on

adoption requires only a simple majority. About Voting, U.S. S

ENATE, https://www.senate.gov/about/

powers-procedures/voting.htm (last visited Nov. 26, 2021).

I say “typically” because, as I later observe, majorities may need to be restrained from abusing

their power.

306 CONNECTICUT LAW REVIEW [Vol. 54:2

fast-tracked the nomination of Justice Amy Coney Barrett just before the

2020 presidential election.

One side’s manipulation invites retaliation by the other side, further

aggravating partisan conflict. When Justice Barrett was nominated and

appointed, many on the left proposed expansion of the Court in the event

that the 2020 elections resulted in a Democratic president and a Democratic

majority in the Senate.

And after Democrats eliminated the filibuster for

lower court nominees in 2013,

Republicans eliminated the filibuster for

Supreme Court nominees in 2017.

One might observe that the Framers of the Constitution identified the kinds

of voting that require more than a simple majority. For example, supermajority

votes are needed for approval of treaties by the Senate,

ratification of

constitutional amendments by the states,

or conviction of government officials

by the Senate on charges of impeachment.

Arguably, if the Constitution does

not explicitly require a supermajority, a simple majority is sufficient.

But under this view, juries could decide cases by a simple majority, and

they cannot. The Constitution does not address voting rules for juries.

Moreover, in 1789, Congress rejected a draft of the Sixth Amendment that

included a requirement of unanimity for juries.

Nevertheless, the Supreme

Court has held that the right to a jury trial under the Sixth and Seventh

Amendments includes a right to a unanimous jury in federal criminal and

civil cases.

The Court also has required juror unanimity in state criminal

trials under the Sixth Amendment,

and states generally require unanimous

Justice Ruth Bader Ginsburg died on September 18, 2020, and the Senate confirmed Justice

Barrett on October 26, 2020. Carl Hulse, How Mitch McConnell Delivered Justice Amy Coney Barrett’s

Rapid Confirmation, N.Y. T

IMES, https://www.nytimes.com/2020/10/27/us/mcconnell-barrett-confirma

tion.html (Nov. 3, 2020).

See, e.g., E.J. Dionne Jr., Enlarging the Supreme Court Is the Only Answer to the Right’s Judicial

Radicalism, W

ASH.POST (Oct. 25, 2020, 7:00 AM), https://www.washingtonpost.com/opinions/the-

high-cost-of-confirming-amy-coney-barrett/2020/10/24/8d5a236a-156f-11eb-bc10-40b25382f1be_story.ht

ml (advocating for the expansion of the Court’s size as a “remedy to conservative court-packing”). Senate

Democrats also would have to eliminate or waive the filibuster rule to pass legislation expanding the

Court. Sydney Ember & Astead W. Herndon, End the Filibuster? Pack the Court? The Left Is Pushing

Biden, N.Y. T

IMES, https://www.nytimes.com/2020/09/28/us/politics/democrats-filibuster-supreme-co

urt-biden.html (Oct. 12, 2020).

The filibuster also was eliminated for nominations to executive branch positions. Jeremy W.

Peters, Senate Vote Curbs Filibuster Power to Stall Nominees, N.Y. T

IMES, Nov. 22, 2013, at A1.

Matt Flegenheimer, Republicans Gut Filibuster Rule to Lift Gorsuch, N.Y. TIMES, Apr. 7, 2017,

at A1.

Two-thirds support is required. U.S. CONST. art. II, § 2.

Three-fourths of the states must approve a constitutional amendment. Id. art. V. In addition,

supermajorities of two-thirds are required to propose amendments. Id.

Two-thirds of the Senate must vote to convict on impeachment charges. Id. art. I, § 3.

Apodaca v. Oregon, 406 U.S. 404, 409 (1972).

Andres v. United States, 333 U.S. 740, 748 (1948).

Ramos v. Louisiana, 140 S. Ct. 1390, 1394–95 (2020).

2022] JUDICIAL CONSENSUS 307

or supermajority votes in civil trials.

Similarly, the Court could conclude

that it must decide its cases unanimously to meet the Due Process Clause’s

requirement of impartial judging.

As I will argue in this Article, for many of the 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.

There also is useful precedent for

unanimous decision-making from Europe. In France, Belgium, Italy, and

other countries, there is a practice of “apparent unanimity,” in which the high

courts issue a single opinion, with no dissenting opinions, and without

disclosing the votes of the justices.

While this practice does not require a

unanimous vote,

it does lead to decisions that take into account the views of

all justices on the courts. And as mentioned, state criminal and federal civil

and criminal juries in the United States must issue unanimous verdicts.

This Article will make several points, which have gone almost entirely

unrecognized to date:

(1) Majority voting does not make sense on an appellate

The Court has neither accepted nor rejected a unanimity requirement for state civil juries, per

incorporation. For civil trials, states tend to require unanimity or supermajorities of three-fourths or

five-sixths. In addition, a small number of states allow decisions by a simple majority. B

UREAU OF JUST.

TATS., U.S. DEP’TOF JUST., STATE CT. ORG. 2004 23337 tbl.42 (2004), https://bjs.ojp.gov/content/

pub/pdf/sco04.pdf.

This Article uses the terms “unanimous” decisions and “consensus” decisions interchangeably.

See infra Part II.

ROSA RAFFAELLI,EUR.PARLIAMENT,DISSENTING OPINIONS IN THE SUPREME COURTS OF THE

MEMBER STATES 17–18 (2012), http://www.europarl.europa.eu/document/activities/cont/201304/2013

0423ATT64963/20130423ATT64963EN.pdf.

In Belgium, for example, a majority vote is sufficient to decide a case. J. Lyn Entrikin, Global

Judicial Transparency Norms: A Peek Behind the Robes in a Whole New World—A Look at Global

“Democratizing” Trends in Judicial Opinion-Issuing Practices, 18 W

ASH.U.GLOB.STUD.L.REV. 55,

96 (2019). In Austria, a majority vote generally is sufficient, but unanimity is required for some

constitutional issues. Id. at 95. Similarly, Germany supplements majority voting with a supermajority

requirement on some matters. Katalin Kelemen, Dissenting Opinions in Constitutional Courts, 14

ERMAN L.J. 1345, 1361 (2013).

There are occasional articles discussing the appropriateness of majority voting on courts. See,

e.g., Jeremy Waldron, Five to Four: Why Do Bare Majorities Rule on Courts?, 123 Y

ALE L.J. 1692,

16941701 (2014) (examining the rationales for majority voting on courts); Guha Krishnamurthi, For

Judicial Majoritarianism, 22 U. PA.J.CONST.L. 1201, 1211–21 (2020) (defending majority voting on

courts). There also is a more common debate on whether separation of powers principles require

supermajority voting when the Supreme Court invalidates legislation. See, e.g., Evan H. Caminker,

Thayerian Deference to Congress and Supreme Court Supermajority Rule: Lessons from the Past, 78

ND. L.J. 73 (2003) (exploring the arguments regarding a supermajority rule for invalidating federal

308 CONNECTICUT LAW REVIEW [Vol. 54:2

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 is more faithful than majority voting

to 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 would work well.

I.THE VIRTUES OF UNANIMOUS DECISION-MAKING

The question of majority versus unanimous voting connects to the

question of how many Justices should sit on the Supreme Court. Just as the

Constitution does not prescribe a voting rule for the Court, it does not speak

to the number of Justices. Article III simply states, “The judicial Power of the

United States, shall be vested in one supreme Court, and in such inferior

Courts as the Congress may from time to time ordain and establish.”

With the Constitution silent on the number of Justices, Congress has

decided that matter, initially in the Judiciary Act of 1789, and later in

subsequent acts. The Supreme Court started with a bench of six, and over the

years has varied in size from five to ten Justices, ultimately settling on its

current number of nine in 1869.

According to statute, the Supreme Court

“shall consist of a Chief Justice of the United States and eight associate

justices, any six of whom shall constitute a quorum.”

Why nine Justices? Why not just one Justice? If the role of the Supreme

Court is, in the words of Chief Justice John Marshall, “to say what the law

is,”

rather than to represent the preferences of the public, one intelligent and

well-trained Justice should be sufficient. Someone with sharp analytical skills

and keen judgment. Say a Marshall (John or Thurgood), a Louis Brandeis, or

a Sandra Day O’Connor. If we can rely on a single judge at the trial court

level, why not at the Supreme Court, too?

statutes). Another proposal would require a supermajority or unanimous vote of the Justices to deny a

petition for certiorari. G. Michael Parsons, Contingent Design & the Court Reform Debate, 23 U. P

A.J.

ONST. L. 795, 839–42 (2021).

While I will focus on the U.S. Supreme Court in this Article, the arguments in favor of unanimous

decisions also apply to other courts of appeal, such as federal intermediate courts of appeal, state supreme

courts, and state intermediate courts of appeal. Also, while this Article proposes a unanimous vote for

the Court’s decisions, it does not propose a change in the four-vote requirement to grant certiorari. Given

the substantial reduction in the Court’s docket over time, Ryan J. Owens & David A. Simon, Explaining

the Supreme Court’s Shrinking Docket, 53 W

M.&MARY L. REV. 1219, 1228–29 (2012), it would not be

prudent to raise the threshold for the Court to accept new cases. Rather, it might make sense to lower the

threshold. Parsons, supra note 18, at 837.

U.S. CONST. art. III, § 1.

Changes in the Court’s composition reflected both partisan considerations and the desire to have

a Justice preside over each judicial circuit. F. Andrew Hessick & Samuel P. Jordan, Setting the Size of

the Supreme Court, 41 A

RIZ.ST. L.J. 645, 664–69 (2009).

28 U.S.C. § 1.

Marbury v. Madison, 5 U.S. 137, 177 (1803).

2022] JUDICIAL CONSENSUS 309

Perhaps, one might observe, even the wisest persons benefit from

sounding boards and devil’s advocates. It is important to test out one’s

theories on other people, who can identify potential weaknesses.

But a single Justice can do that without other Justices. Dialogue with

lawyers at oral argument or discussion with law clerks can provide sufficient

input, as can briefs from the parties and amici and commentaries in law reviews,

op-ed pages, or blogs. A single Justice could turn to a group of experienced

judicial clerks before rendering decisions, just as a single president turns to

advisers for guidance before issuing policy directives. We have nine Justices

because we want multiple people deciding, not just advising.

This takes us to the question why we want multiple people deciding. The

analogy of the jury is useful in providing an answer.

In requiring unanimous juries, the Supreme Court has identified a few

key considerations. We should have a fair cross-section of the community

participate in the decision-making process, and the members of the jury

should reach a consensus decision after careful deliberation.

These

considerations also apply to decisions by the Supreme Court. It is important

to have Justices with a range of backgrounds and ideological perspectives

who reach a consensus decision after careful deliberation.

The benefits of collective, consensus decision-making after careful

deliberation are well recognized by deliberative democracy theory. When people

come together for a thoughtful and reasoned exchange of ideas and arguments,

they become more aware of the strengths and weaknesses of the opinions of

others, as well as of their own views.

As a result, they make better decisions.

Accordingly, collective decision-making has long been commended,

dating at least as far back as ancient Greece. For example, in Politics,

Aristotle wrote in favor of political control by the many collectively, rather

than by the few best, in a society.

A concrete example will be useful––say, whether the Due Process

Clause of the Constitution protects a right to medical aid in dying (i.e., a

right to physician-assisted suicide).

Apodaca v. Oregon, 406 U.S. 404, 410–11 (1972). While the Supreme Court has required jury

pools to represent a fair cross-section of the community, it has not extended that requirement to the juries

themselves. Holland v. Illinois, 493 U.S. 474, 478 (1990).

AMY GUTMANN &DENNIS THOMPSON,DEMOCRACY AND DISAGREEMENT 42 (1996).

Id. at 43; Maya Sen, Courting Deliberation: An Essay on Deliberative Democracy in the

American Judicial System, 27 N

OTRE DAME J.L. ETHICS &PUB.POL’Y 303, 307–08 (2013). As Sen

observes, the current practice of majority voting on the Supreme Court discourages the kind of

deliberation that deliberative democracy envisions. Id. at 321–23.

ARISTOTLE, Book Three: Definition and Division of Regime, in THE POLITICS OF ARISTOTLE 112

(Peter L. Phillips Simpson trans. & ed., 1997). See also Daniela Cammack, Aristotle on the Virtue of the

Multitude, 41 P

OL.THEORY 175, 185–186 (2013) (observing that Aristotle, Xenophon, Aesop, and

Demosthenes all wrote about the benefits of collective action).

In Washington v. Glucksberg, 521 U.S. 702 (1997), the Court declined to recognize a

constitutional right, but with more and more states legalizing aid in dying, the issue is likely to come

310 CONNECTICUT LAW REVIEW [Vol. 54:2

In considering this question, a number of factors are relevant. On one

hand, patients might choose aid in dying to bring relief from intolerable

suffering. Or maybe they ask for a lethal dose of medication, not to use

immediately, but to ensure that if suffering does become intolerable, they will

possess the means to gain relief. On the other hand, the state has an important

interest in preserving life and also in preventing aid in dying when the patient’s

request is compromised by diminished decision-making capacity.

In determining whether there should be a right to aid in dying, courts

have to weigh these factors, together with other relevant factors, and

inevitably different Justices will come to different conclusions. Some will

place greater weight on concerns about suffering or individual autonomy,

while others will place greater weight on concerns about compromised

decision-making or the sanctity of life. In an ideal world, we could determine

how the balance among competing factors should come out, and therefore,

which Justice’s reasoning and conclusions were correct.

In our actual world, there is no clear answer on how the balance should

play out. Experts can differ as to the meaning of the Due Process Clause and

how it weighs competing interests. Accordingly, a group of Justices will

bring justifiably different understandings to the aid-in-dying question, and

they will strike the balance among the different interests in different places.

In other words, we have no good basis for favoring one Justice’s analysis

over another’s.

Rather, we need to take into account each Justice’s views.

We all benefit when legal rules reflect the perspectives of both sides of

the ideological spectrum. Neither side has a monopoly on the truth; both

sides have their policy blind spots. Justices on the right can steer their liberal

counterparts away from misguided decisions and toward desirable decisions.

Justices on the left can do the same for their conservative colleagues.

While unanimous voting ensures due consideration of all of the Justices’

perspectives, majority voting allows the Court to decide cases without giving

regard to all of the Justices. One side of the ideological spectrum can impose

its views to the exclusion of alternative perspectives.

Or to put it another way, the collective wisdom of the full group is

superior to that of a single Justice or a mere majority of Justices.

Better

back to the Court. In some countries, such as Canada, medical aid in dying includes both

physician-assisted suicide and euthanasia. David Orentlicher, International Perspectives on Physician

Assistance in Dying, H

ASTINGS CTR.REP., Nov.–Dec. 2016, at 6.

Glucksberg, 521 U.S. at 728–31. For further discussion of the arguments in favor of and in

opposition to a right to aid in dying, see D

AVID ORENTLICHER,MATTERS OF LIFE AND DEATH:MAKING

MORAL THEORY WORK IN MEDICAL ETHICS AND THE LAW 24–80 (2001).

As legal realism has shown, there is ample evidence of the lack of clear answers to many legal

questions.

AMY GUTMANN &DENNIS THOMPSON,WHY DELIBERATIVE DEMOCRACY? 11–12 (2004).

Jeffrey Abramson, Four Models of Jury Democracy, 90 CHI.-KENT L. REV. 861, 884 (2015).

2022] JUDICIAL CONSENSUS 311

that the Court base its holdings on the understandings of all of the Justices

rather than on views that are particular to only some of the Justices.

Considering the Court’s decision-making process from the perspective of

interpretive theory leads to the same result. In deciding constitutional cases,

for example, the Justices could invoke the original intent of the Framers, or

they could rely on an evolving understanding of the constitutional text. Using

different theories of interpretation often will yield different results, and we

lack a clear basis for preferring one interpretation over the other.

Or even if we could agree on a single theory of constitutional interpretation,

different Justices still will reach different conclusions in many cases. For

example, in the District of Columbia v. Heller

gun rights case, both the

majority opinion authored by Justice Antonin Scalia and a dissenting opinion

authored by Justice John Paul Stevens cited original intent as the basis for their

understandings of the Second Amendment’s right to keep and bear arms.

Other perspectives on judicial decision-making also favor consensus

decision-making. For example, legal judgment reflects a number of personal

qualities, including intelligence, wisdom, courage, and temperance,

and

some Justices will be strong in some of those qualities, but not others.

Consensus judicial decisions draw on the strengths of all of the Justices. By

way of analogy, voters commonly wish they could elect a president with the

best qualities of each of the different candidates.

Empirical evidence supports the view that a group decision by nine

Justices will be sounder than would decisions by a single Justice or a simple

majority of Justices. For example, studies on decision-making demonstrate

that better outcomes result when the decisions are made by a group of

persons who come to the table with different strategies for deciding. In a

study that looked at this question, researchers found that a group of good

problem solvers who employ a diversity of problem-solving approaches can

outperform a group of problem solvers whose problem-solving skills are

stronger but who employ problem-solving approaches that are alike.

Overall, “heterogeneous groups outperform homogeneous groups on tasks

requiring creative problem solving and innovation, because the expression

of alternative perspectives can lead to novel insights.”

Richard A. Posner, The Role of the Judge in the Twenty-First Century, 86 B.U. L. REV. 1049,

1051–52 (2006).

554 U.S. 570 (2008).

Id. at 574–603; id. at 63738, 640–52 (Stevens, J., dissenting).

Lawrence B. Solum, Virtue Jurisprudence: A Virtue-Centred Theory of Judging, 34

ETAPHILOSOPHY 178, 189–94 (2003).

Lu Hong & Scott E. Page, Groups of Diverse Problem Solvers Can Outperform Groups of High-

Ability Problem Solvers, 101 P

ROCS.NAT’L ACAD.SCIS. 16385, 16385 (2004).

Deborah H. Gruenfeld et al., Group Composition and Decision Making: How Member

Familiarity and Information Distribution Affect Process and Performance, 67 O

RGANIZATIONAL

BEHAV.&HUM.DECISION PROCESSES 1, 4 (1996).

312 CONNECTICUT LAW REVIEW [Vol. 54:2

This last point is worth emphasizing. When people with different

perspectives make decisions together, they can identify solutions that none

of them acting alone would have recognized. Their different ideas can

combine to identify new approaches.

Thus, rather than merely splitting

their differences, they can discover win-win outcomes that make for better

overall results.

Similarly, when a group of Justices decides a case, the quality of their

decision-making is better when the Justices bring different perspectives to

the table than when they are like-minded.

We are better off with Justices

who have different theories of constitutional interpretation, such as

originalism and living constitutionalism, than Justices who all subscribe to

the same theory of judging. We also are better off with Justices who have

different ideological leanings, different life experiences, and different races

and sexes, than with Justices who share similar ideological predispositions,

life experiences, races, and sexes.

If decisions are better made when they are made by people with different

perspectives, then it doesn’t make sense for the Supreme Court to decide by

a majority vote. Majority voting allows for decisions based on a narrower

rather than broader range of perspectives, thereby diminishing the quality of

the decisions. It is incoherent to value a diversity of perspectives and then

employ a decision-making process that frequently disregards a major part of

that diversity. During the Court’s 2019 term, for example, Justice Sonia

Sotomayor dissented in 28% of the Court’s cases, with a 44% dissent rate

when the Court was not unanimous.

In those cases, the Court’s decisions

lacked the perspective of its only minority female member. Similarly, Justice

Clarence Thomas also dissented in 28% of cases and 44% of cases when the

Court was not unanimous.

In those cases, the Court’s decisions lacked the

perspective of its only minority male member. No other Justice’s voice was

excluded as often as were those of Sotomayor and Thomas,

and, with five

SCOTT E. PAGE,THE DIVERSITY BONUS:HOW GREAT TEAMS PAY OFF IN THE KNOWLEDGE

ECONOMY 93–95 (2017).

See generally Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The

Structure of Problem Solving, 31 UCLA L. R

EV. 754 (1984).

See Krishna K. Ladha, The Condorcet Jury Theorem, Free Speech, and Correlated Votes, 36 AM.

J. P

OL.SCI. 617, 627 (1992) (observing that the Court makes better decisions when the Justices come

from different schools of thought).

PAGE, supra note 39, at 115–16.

Frequency in the Majority, SCOTUSBLOG, https://www.scotusblog.com/wp-content/uploads/2

020/07/Frequency-in-majority-7.20.20.pdf (last visited Nov. 26, 2021) (providing data from the October

2019 term). That is, when one looks at cases decided by an 8-1, 7-2, 6-3, or 5-4 vote, Justice Sotomayor

dissented 44% of the time. Id.

Id.

Id. During the Court’s 2020 term, the dissent rates changed somewhat. Justice Sotomayor was

still the most frequent dissenter, in 31% of all cases and in 55% of non-unanimous cases. Frequency in

the Majority, SCOTUS

BLOG, https://www.scotusblog.com/wp-content/uploads/2021/07/Frequency-

7.2.21.pdf (last visited Nov. 28, 2021) (providing data from the 2020 term). Justice Thomas was still the

2022] JUDICIAL CONSENSUS 313

white male Justices on the Court, it was impossible for the Court to render a

decision that lacked the perspective of a white male Justice. Incorporating

minority viewpoints is an important reason why studies of juries find that

the unanimous jury is preferable to the non-unanimous jury.

Indeed, empirical research has repeatedly shown that unanimity fosters

more extensive and considered jury deliberations.

When unanimity is

required, juries have more “robust discussions,” while supermajority juries

are more focused on which verdict they should reach.

As a result, the

non-unanimous juries tend to end their deliberations soon after the

supermajority secures enough votes to settle on a verdict.

In addition,

unanimous juries are more thorough in their evaluations of the evidence and

the law, and mock jurors deciding under a unanimity rule take more time for

their deliberations, discuss more issues, and are more satisfied with their

final verdicts.

Importantly, when juries must decide unanimously, the majority gives

greater consideration to minority viewpoints. Those in the minority

participate more in the jury’s deliberations, and their perspectives play a

greater role in shaping the jury’s decision.

We see the same benefits of consensus decision-making on European

constitutional courts. At the U.S. Supreme Court, Justices meet in

conference after a week of oral arguments to vote on cases and assign

opinions for drafting. All of the Justices present their thoughts, but there is

little deliberation during the conferences. As Justice Scalia observed about

the practices of the Court, “To call our discussion of a case a conference is

really something of a misnomer. It’s much more a statement of the views of

most frequent dissenter among conservative Justices, in 19% of all cases and in 30% of non-unanimous

cases. Id. But, Justices Elena Kagan and Stephen Breyer dissented at higher rates than Justice Thomas,

with Justice Kagan dissenting at 25% and 45%, respectively, and with Justice Breyer dissenting at 24%

and 42%, respectively. Id. During the 2018 term, Justices Thomas and Neil Gorsuch dissented the most,

both in 28% of all cases and in 45% of non-unanimous cases. Frequency in the Majority, SCOTUS

BLOG,

https://www.scotusblog.com/wp-content/uploads/2019/07/StatPack_OT18-7_30_19-18.pdf (last visited

Nov. 28, 2021) (providing data from the 2018 term). Justices Sotomayor and Ruth Bader Ginsburg were

the next most frequent dissenters, both at 24% and 39%, respectively. Id.

Shari Seidman Diamond, Mary R. Rose & Beth Murphy, Revisiting the Unanimity Requirement:

The Behavior of the Non-Unanimous Civil Jury, 100 N

W.U.L.REV. 201, 204–05 (2006). Non-

unanimous juries are permitted in state civil courts; until the Supreme Court’s 2020 decision in Ramos

v. Louisiana, states were permitted to use non-unanimous criminal juries, with Oregon being the last state

to allow non-unanimous verdicts. 140 S. Ct. 1390, 1394–95 (2020).

Dennis J. Devine et al., Jury Decision Making: 45 Years of Empirical Research on Deliberating

Groups, 7 P

SYCH.PUB.POL’Y & L. 622, 669 (2001); Diamond, Rose & Murphy, supra note 46, at 229.

Valerie P. Hans, The Power of Twelve: The Impact of Jury Size and Unanimity on Civil Jury

Decision Making, 4 D

EL.L.REV. 1, 24–25 (2001).

Devine et al., supra note 47, at 669.

Id.

Valerie P. Hans, Deliberation and Dissent: 12 Angry Men Versus the Empirical Reality of Juries,

82 C

HI.-KENT L. REV. 579, 587 (2007).

314 CONNECTICUT LAW REVIEW [Vol. 54:2

each of the nine Justices.”

In contrast, their European counterparts discuss

cases at greater length, sometimes for days of argument and persuasion, to

reach a consensus decision.

One might ask whether the experience with juries carries over to judicial

benches. There are significant differences between trial juries and appellate

benches. Still, we can be confident about the benefits of consensus

decision-making from the European experience. Just as unanimous juries

deliberate longer and give greater consideration to minority viewpoints, so

do European constitutional courts.

Moreover, the similarities between juries and judges are much more

important than the differences. Consider, for example, the question whether

the original intent of the Second Amendment supports an individual right to

keep and bear arms. In deciding that question in Heller, the Justices

examined a body of evidence, including the legislative history, public

understandings of the Second Amendment’s text, and understandings of late

eighteenth century and early nineteenth century legal experts.

The Justices

then decided whether that evidence pointed to an individual right or a right

of militias.

Similarly, juries in criminal cases have to consider a body of

evidence and decide whether that evidence points to the defendant’s

innocence or guilt.

Justices and jurors both have to apply legal standards to the facts of a

case. The Supreme Court might have to decide what the drafters of a

constitutional or statutory provision intended by their words, and jurors

might have to decide what parties to a contract intended by their words.

Similarly, Justices or jurors might have to decide whether evidence of a

physician’s conduct constitutes negligence and whether the patient was

harmed as a result. As Jeffrey Abramson has observed, juries decide matters

that are a hybrid of law and fact.

Accordingly, we can safely conclude that

just as unanimity improves decision-making on juries, it will do so on

appellate courts.

In addition, the differences between juries and courts strengthen the

argument for unanimous decisions by courts. While juries and courts both

decide questions of fact and law, jury decisions are more fact-based and

therefore more demonstrably accurate or inaccurate. Scientific analysis, for

example, can reliably identify the father of a child in a paternity dispute.

Scientific analysis cannot, however, tell us how to balance concerns about

the sanctity of life with the autonomy of a patient who desires aid in dying.

EDWARD LAZARUS,CLOSED CHAMBERS:THE RISE,FALL, AND FUTURE OF THE MODERN

SUPREME COURT 285 (1999).

John Ferejohn & Pasquale Pasquino, Constitutional Adjudication: Lessons from Europe, 82 TEX.

L. R

EV. 1671, 1693–94 (2004).

District of Columbia v. Heller, 554 U.S. 570, 581–610 (2008).

Id.

Abramson, supra note 32, at 877–78.

2022] JUDICIAL CONSENSUS 315

If we reject majority decisions by juries even when those decisions are

substantially fact-based, then it makes sense to reject majority decisions by

courts for decisions that are more subjective in nature and therefore about

which reasonable people will differ.

While the jury principle of unanimity fits well with judicial

decision-making, the majority principle for legislative bodies or elections does

not. When elections are held, all voters are eligible to cast a ballot. When

legislators assemble, they represent all members of the jurisdiction.

Accordingly, majority voting ensures that each member of the relevant

constituency is given equal weight. But appellate courts are not representative

bodies, nor are they supposed to be. Thus, the Supreme Court might have a

two-thirds majority of conservative or liberal Justices at the same time that the

public is evenly divided between conservative and liberal viewpoints. The

goal of a court is not to reflect the majority but to implement guiding legal

principles. And as discussed, that is best accomplished by ensuring that

decisions are based on a broad range of perspectives rather than the

perspectives of one side of the ideological spectrum.

Decisions that are representative of the full court have another important

virtue: they have greater legitimacy.

When critical issues can be decided by

a 5-4 Court, the losing side can easily feel that the decisions are based on

ideology rather than the law. Consider in this regard the Court’s controversial

5-4 decision in Bush v. Gore

that decided the 2000 presidential election in

favor of George W. Bush.

In that case, the majority was composed of the

conservative wing of the Court, with the minority comprising the liberal wing

of the Court. Many members of the public concluded that the conservative

Justices sided with Bush because he was the more conservative candidate.

Concern about legitimacy is a key reason why Chief Justices, such as John

Marshall, adopted a norm of unanimous decisions on the U.S. Supreme Court

in past years and why multiple European high courts operate with a norm of

decisions without dissent today.

PAMELA C. CORLEY,AMY STEIGERWALT &ARTEMUS WARD,THE PUZZLE OF UNANIMITY:

ONSENSUS ON THE UNITED STATES SUPREME COURT 7–10 (2013).

531 U.S. 98 (2000).

See Laurence H. Tribe, The Unbearable Wrongness of Bush v. Gore, 19 CONST.COMMENT. 571,

574–76 (2002) (“[B]y December 2000 the Court’s stock of political and moral capital sufficed to enable

it in essence to dictate the succession to the presidency, through the agency of the electoral college, [to]

the candidate[,] [George W. Bush] with half a million fewer popular votes nationally than his opponent[,]

[Al Gore] . . . .).

Id. at 576, 602.

RAFFAELLI, supra note 16, at 10–11; JEAN EDWARD SMITH,JOHN MARSHALL:DEFINER OF A

NATION 292–93 (1996). To be sure, it is important not to overstate the legitimacy argument. Some

research suggests limits to its relevance. According to one study, for example, on issues of high salience,

where people generally have settled views, it may not matter whether the Court decides by a 9-0 or 5-4

vote. Michael F. Salamone, Judicial Consensus and Public Opinion: Conditional Response to Supreme

Court Majority Size, 67 P

OL.RSCH. Q. 320, 332 (2014). However, on issues of low salience, for which

316 CONNECTICUT LAW REVIEW [Vol. 54:2

The legitimacy concern applies not only to how decisions are viewed by

the public, but also how they are viewed by lower courts. When the Supreme

Court decides a case with dissenting opinions, or with concurring opinions

that disagree with the reasoning of the majority, lower courts are less likely

to follow the Court’s decision.

One might wonder whether a requirement of unanimity goes too far in

compensating for the problems with majority voting on courts. One Justice

with an idiosyncratic view could block the entire Court from resolving a legal

question.

Should we prefer a supermajority vote over a unanimous vote?

Supermajority voting does not ensure ideological balance. As the

experience with non-unanimous juries indicates, even supermajorities can

reject minority perspectives.

In addition, we need not worry about a requirement of unanimity.

Justices are carefully screened before nomination for their training,

experience, and perspectives, and the vetting process excludes candidates

with views that are too extreme and not adequately based on an

understanding of the U.S. legal system.

Justices come to the bench with

more in common than members of many juries.

For example, eight of the

nine current Justices attended Harvard or Yale for law school.

most people may not have settled views, the size of the Court’s majority may matter more. Id. In addition,

on some issues, a divided opinion may actually promote legitimacy by demonstrating that both sides of

the issue were heard by the Justices or by indicating the presence of sympathetic Justices on the Court.

Id. See also Kelemen, supra note 17, at 1356 (observing that the publication of dissents can promote

legitimacy via greater transparency).

But note that it is difficult to separate public views about legitimacy from public views about the

content of the Court’s decisions. For example, when the Court issues more liberal decisions, its approval

rises among Democrats and falls among Republicans. Conversely, when the Court issues more

conservative decisions, Republicans become more approving and Democrats become less approving.

In 2015, for example, after the Court recognized same-sex marriage and upheld the Affordable Care

Act, Democratic approval rose to 76% while Republican approval dropped to 18%. Jeffrey M. Jones,

Republicans’ Approval of Supreme Court Sinks to 18%, G

ALLUP (July 16, 2015),

https://news.gallup.com/poll/184160/republicans-approval-supreme-court-sinks.aspx. In contrast, in 2021,

after a term with a mix of conservative and liberal decisions, 51% of both Democrats and Republicans

(and 46% of independents) expressed approval. Jeffrey M. Jones, Supreme Court Job Approval Dips

Below 50%, G

ALLUP (July 28, 2021), https://news.gallup.com/poll/352895/supreme-court-job-approval-

dips-below.aspx. These survey results support the view that a requirement of unanimity would result in

similar levels of approval across party lines.

PAMELA C. CORLEY,CONCURRING OPINION WRITING ON THE U.S. SUPREME COURT 77–78, 85

(2010); Sara C. Benesh & Malia Reddick, Overruled: An Event History Analysis of Lower Court Reaction

to Supreme Court Alteration of Precedent, 64 J. P

OLS. 534, 546 (2002).

Melissa Schwartzberg, Voting the General Will: Rousseau on Decision Rules, 36 POL.THEORY

403, 404–05 (2008).

BARRY J. MCMILLION,CONG.RSCH.SERV.,R44235, SUPREME COURT APPOINTMENT PROCESS:

RESIDENT’S SELECTION OF A NOMINEE 8–10, 14–15 (2021).

I am grateful to Howard Watts for pointing out this comparison.

Ilana Kowarski, Where Supreme Court Justices Earned Law Degrees, U.S. NEWS &WORLD REP.

(Nov. 5, 2020), https://www.usnews.com/education/best-graduate-schools/top-law-schools/articles/whe

re-supreme-court-justices-earned-law-degrees.

2022] JUDICIAL CONSENSUS 317

importantly, principles of game theory provide reassurance that each Justice

would choose cooperation over gridlock. As discussed in Part VI of this

Article, when people must work with a group of peers on a frequent basis to

decide matters, they realize that they are better off developing collegial

rather than oppositional relationships.

Unanimous decisions also help mitigate an important concern with

group decision-making—the “groupthink” problem. As Irving Janis has

written, an excessive tendency toward uniform thinking by members of a

group can lead to defective decision-making and ill-fated decisions.

Important examples include the Kennedy administration’s decision to

authorize the Bay of Pigs invasion of Cuba and the Johnson administration’s

escalation of the Vietnam War.

While research has not validated aspects

of Janis’ theory,

we do need to address the pitfalls of group

decision-making, and one valuable way to do that is to broaden the diversity

of group members. Diversity increases the likelihood of good decisions and

reduces the chances that groups will fall into the trap of groupthink or other

decision-making errors.

Accordingly, unanimous decisions made by

Justices who diverge in their perspectives will generally do a better job of

avoiding decision-making failures than will decisions made by a majority of

Justices who are like-minded in their views.

I have explained how unanimous voting yields better results than

majority voting on courts. Unanimity also is required to satisfy principles of

due process.

II.J

UDICIAL UNANIMITY AND THE DUE PROCESS CLAUSE

When the Constitution provides its fundamental guarantee of due

process, it promises individuals that they will receive an impartial hearing

before a neutral court.

And a neutral court decides cases without any

personal, political, or other partiality.

See infra notes 193–198 and accompanying discussion.

IRVING L. JANIS,GROUPTHINK:PSYCHOLOGICAL STUDIES OF POLICY DECISIONS AND FIASCOES

vii, 9 (2d ed. 1982).

Id. at 31–32, 98–101. See also 1961–1968: The Presidencies of John F. Kennedy and Lyndon B.

Johnson, U.S. D

EP’T OF STATE: OFF. OF THE HISTORIAN, https://history.state.gov/milestones/1961-

1968/foreword (last visited Sept. 22, 2021) (providing background on the Bay of Pigs invasion and the

escalation of the Vietnam War).

CASS R. SUNSTEIN &REID HASTIE,WISER:GETTING BEYOND GROUPTHINK TO MAKE GROUPS

SMARTER 6–7 (2015).

Id. at 143, 146–48.

Martin H. Redish & Jennifer Aronoff, The Real Constitutional Problem with State Judicial

Selection: Due Process, Judicial Retention, and the Dangers of Popular Constitutionalism, 56 W

M.&

ARY L. REV. 1, 34, 36–37 (2014).

Charles Gardner Geyh, The Dimensions of Judicial Impartiality, 65 FLA.L.REV. 493, 499–509

(2013).

318 CONNECTICUT LAW REVIEW [Vol. 54:2

But the Supreme Court is not a neutral court. It has either a conservative

or liberal majority of Justices, and overall, that makes for either a

conservative or liberal predilection.

When a court has a liberal majority,

parties promoting a conservative viewpoint are disadvantaged. Similarly,

when a court has a conservative majority, parties promoting a liberal

viewpoint are disadvantaged.

To be sure, if judging entailed a purely objective application of legal

rules and principles to the facts, a Justice’s ideology would not matter. But,

as discussed in the previous section and as empirical evidence demonstrates,

a Justice’s ideology does matter.

Some Justices take more conservative

positions, while others take more liberal positions.

A conservative majority

will render different decisions on campaign finance, environmental

regulation, or religious freedom than will a liberal majority. When the

Court’s decisions reflect the philosophical leanings of the Justices, and

decisions can be determined by a majority on one side of the ideological

spectrum, our judicial system denies an impartial hearing to parties on the

other side of the ideological spectrum. And that is fundamentally unfair in a

constitutional system that promises litigants due process in court.

Because it is unfair for litigants to have their cases decided by an

ideologically skewed court, due process requires reforms to ensure that

decisions by the Supreme Court reflect both sides of the ideological

spectrum. Scholars and others have proposed a number of approaches to

bring ideological balance to the Court, including changes in the judicial

appointment process.

The simplest path to ideological balance would start with the Court

rendering its decisions unanimously. That way, Justices on both sides of the

ideological spectrum would have to support the Court’s opinions. When a

LEE EPSTEIN,WILLIAM M. LANDES &RICHARD A. POSNER,THE BEHAVIOR OF FEDERAL

JUDGES:ATHEORETICAL AND EMPIRICAL STUDY OF RATIONAL CHOICE 103 (2013).

Id.

Lee Epstein et al., Ideological Drift Among Supreme Court Justices: Who, When, and How

Important?, 101 N

W.U.L.REV. 1483, 1491–92 (2007).

See, e.g., Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 YALE L.J. 148,

181205 (2019) (supporting either (1) an expansion of the Court to include all judges on the U.S. Courts

of Appeal with randomly chosen panels of nine serving for two weeks at a time and no more than five

members of a panel having been appointed by a Democratic or Republican president or (2) a

fifteen-Justice Court with five Justices affiliated with the Democratic Party, five affiliated with the

Republican Party, and five chosen by the ten party-affiliated Justices); David Orentlicher, Politics and

the Supreme Court: The Need for Ideological Balance, 79 U. P

ITT.L.REV. 411, 42329, 43234 (2018)

[hereinafter Orentlicher, Ideological Balance] (proposing ideological balance via expansion of the Court

to include four Justices chosen by a Democratic nominating committee, four by a Republican nominating

committee, and four by a joint Democratic-Republican nominating committee, and a supermajority

requirement of ten votes so at least two Justices from each of the three blocs would have to agree on

every decision); Eric J. Segall, Eight Justices Are Enough: A Proposal to Improve the United States

Supreme Court, 45 P

EPP.L.REV. 547, 55356 (2018) (arguing for a Court with four Justices affiliated

with the Democratic Party and four affiliated with the Republican Party).

2022] JUDICIAL CONSENSUS 319

majority can write the Court’s opinions, then minority perspectives can be

excluded. For many critical issues, the Court’s majority can impose its

perspective on the country, leaving the minority perspective unrepresented.

Here, too, the example of the jury is illustrative. For the Court to be

impartial, this Article argues, it should issue decisions that reflect the views

of Justices from both sides of the ideological spectrum. Similarly, in defining

the meaning of an impartial jury, the Court has required that jurors be drawn

from a fair cross-section of the community.

As the Court also has noted,

the due process standards for jury size and jury voting reflect the goal of

group deliberation undertaken by a jury that is representative of the

community.

Too small a jury prevents a sufficiently diverse jury, and as

discussed above, majority voting discourages thorough deliberation and

denies consideration of minority viewpoints.

As mentioned, the Supreme Court itself observed a norm of consensual

decision-making for most of its history. During its initial years, the Court

followed the British practice of opinions issued seriatim (separately) by each

Justice. But that approach made it difficult for lawyers, lower court judges,

and the public to know what the Court actually held.

This made for “a weak

and divided Court unable to assert any real authority.”

As a result, Chief

Justice Oliver Ellsworth tried to increase the Court’s power by introducing

the idea of a single opinion for the Court.

While Ellsworth was

unsuccessful, his successor, Chief Justice Marshall, institutionalized a

policy of unanimous decisions, so the Court could speak with a unified

voice. Instead of each Justice authoring an individual decision to be

presented seriatim, the Justices agreed on a consensus position.

During

Marshall’s first four years as chief, all of the Court’s opinions were issued

for the Court as a whole, with one concurring opinion and no dissenting

opinions.

In Marshall’s overall tenure as Chief Justice, dissents were

Taylor v. Louisiana, 419 U.S. 522, 526–27 (1975).

Williams v. Florida, 399 U.S. 78, 100 (1970).

M. Todd Henderson, From Seriatim to Consensus and Back Again: A Theory of Dissent, 2007

UP.CT.REV. 283, 308.

Id.

Id. at 310. Ellsworth presided from 1796 to 1800. NCC Staff, The Most Underrated Founding

Father: Oliver Ellsworth?, N

AT’L CONST.CTR. (Apr. 29, 2021), https://constitutioncenter.org/blog/the-

most-underrated-founding-father-oliver-ellsworth.

Henderson, supra note 80, at 310, 313.

Sandra Day O’Connor, William Howard Taft and the Importance of Unanimity, 28 J. SUP.CT.

IST. 157, 157–59 (2003). Scholars differ on the question of authorship. In one view, opinions were

authored by an anonymous Justice and issued under the name of Chief Justice Marshall because he

announced the opinions. Henderson, supra note 80, at 313; 2 G

EORGE LEE HASKINS &HERBERT A.

OHNSON,HISTORY OF THE SUPREME COURT OF THE UNITED STATES:FOUNDATIONS OF POWER:JOHN

MARSHALL, 1801-15, at 382-387 (1981). In another view, Marshall both authored and delivered the

opinions issued under his name. O’Connor, supra, at 159; K

ATALIN KELEMAN, JUDICIAL DISSENT IN

EUROPEAN CONSTITUTIONAL COURTS:ACOMPARATIVE AND LEGAL PERSPECTIVE 59 (2018).

320 CONNECTICUT LAW REVIEW [Vol. 54:2

written in around 6% of cases.

The norm of consensus was maintained by

later Chief Justices such that until 1941, the Justices typically spoke

unanimously. From 1801 through 1940, only about 8% of cases included a

dissenting opinion.

The norm against dissent was so strong that it was incorporated in the

American Bar Association’s Canons of Judicial Ethics in 1924.

From then

until 1972, according to the Canons, it was of “high importance” that judges

or Justices on courts of last resort “use effort and self-restraint to promote

solidarity of conclusion.”

Importantly when single opinions were the norm, Justices on both sides

would move toward the other side to reach a consensus. The lead Justices

would shape their opinions to secure broad support from their colleagues.

Robert Post has discussed an illustrative example from an opinion by Chief

Justice William H. Taft in a 1929 case, Wisconsin v. Illinois.

As Post

describes it, Taft had expended considerable effort on an opinion to advance

“a very broad theory of federal commerce power that he fervently supported.

But in order to attain unanimity he agreed to censor his own views . . . .”

In a letter to a fellow Justice, Taft wrote,

I worked all summer on the constitutional part of the opinion . . .

and satisfied myself completely by an examination of the briefs

and the authorities on the subject, [but in the end, the opinion

represented] a real sacrifice of personal preference . . . . [I]t is

the duty of us all to control our personal preferences to the main

object of the Court.

This was not the only example for Taft. As Post writes, Taft “was willing to

go to extraordinary lengths to modify his own opinions to reach out to others.”

Cass R. Sunstein, Unanimity and Disagreement on the Supreme Court, 100 CORNELL L. REV.

769, 776, 778 (2015). Another calculation puts the dissent rate under Marshall at 4%. Henderson, supra

note 80, at 323.

Sunstein, supra note 85, at 771, 776.

Robert Post, The Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship,

and Decisionmaking in the Taft Court, 85 M

INN.L.REV. 1267, 1284 (2001).

CANONS OF JUD.ETHICS Canon 19 (AM.BAR ASS’N 1924), reprinted in LISA L. MILORD,THE

DEVELOPMENT OF THE ABA JUDICIAL CODE 137 (1992). See also Post, supra note 87, at 1284 & n.55

(discussing Canon 19).

278 U.S. 367 (1929). The case involved a challenge by Wisconsin and other states regarding the

amount of water withdrawn by Illinois and the city of Chicago from Lake Michigan. Id. at 399. The

opinion addressed Commerce Clause issues related to congressional power to regulate withdrawal of

water by the states. Id. at 375.

Post, supra note 87, at 1312.

Letter from William Howard Taft to Pierce Butler (Jan. 7, 1929) (on file with the Library of

Congress).

Post, supra note 87, at 1312. See also Jed Handelsman Shugerman, A Six-Three Rule: Reviving

Consensus and Deference on the Supreme Court, 37 G

A.L.REV. 893, 917–20 (2003) (discussing Taft’s

efforts at achieving consensus).

2022] JUDICIAL CONSENSUS 321

With their reshaping of opinions to broaden their majority, drafting

Justices were able to encourage their Court colleagues in the minority to join

them. Indeed, the minority Justices regularly changed their votes from

opposition to agreement to forge consensus. An important study in this

regard compared the votes of the Justices taken at their post-oral argument

conferences with the final votes of the Justices over a fourteen-year period

under Chief Justice Morrison Waite.

During that time in the late 1800s, the

rate of dissenting final votes was only 9%. But the dissent rate for conference

votes was 40%.

While non-unanimous votes often became unanimous,

there was little movement in the opposite direction. When the conference

vote was unanimous, the final vote was unanimous 98.8% of the time.

The Taft Court produced similar data. Of 1,028 cases that were decided

unanimously with published opinions, only 58% were unanimous in

conference. The other 42% of cases included cases in which a Justice

changed a dissenting conference vote (30%) or an uncertain vote (12%).

And the move from the minority to the majority did not result from

movement in areas of law that might seem less contentious. Rather,

movement occurred across all subject matters. For example, among the civil

liberties cases that had a non-unanimous vote in conference in the Waite

Court study, 60% became unanimous on final vote.

Perhaps the most famous example of movement by majority and

minority to reach consensus occurred after the Court abandoned its norm of

consensus. While the norm no longer prevailed, Chief Justice Earl Warren

recognized the importance of unanimity in critical cases and therefore turned

a 6-3 majority into a 9-0 majority for the Court in Brown v. Board of

Education of Topeka.

Movement by both the majority and minority to common ground also

occurs in European countries whose highest courts do not allow dissents.

Lee Epstein, Jeffrey A. Segal & Harold J. Spaeth, The Norm of Consensus on the U.S. Supreme

Court, 45 A

M.J.POL.SCI. 362, 363, 365–69 (2001). The researchers were able to conduct the study because

they had access to Chief Justice Waite’s docket books for cases between 1874 and 1887. Id. at 363.

Id. at 366.

Id.

Post, supra note 87, at 1332–33.

Epstein, Segal & Spaeth, supra note 93, at 367.

347 U.S. 483 (1954); S. Sidney Ulmer, Earl Warren and the Brown Decision, 33 J. POL. 689,

696–700 (1971). In Brown, the Court declared segregated schools unconstitutional. Brown, 347 U.S. at

495. Before the Brown case was reargued under Chief Justice Warren, the preliminary vote on Brown,

under Chief Justice Frederick Moore Vinson, was 4-5. Ulmer, supra, at 691–92. See also Michael J.

Klarman, Brown at 50, 90 V

A.L.REV. 1613, 1613–14 (2004) (reviewing history of Court deliberations

in Brown).

See RAFFAELLI, supra note 16, at 11 (observing that “in many systems where separate opinions

are forbidden, and most notably in the CJEU, the decision-making process is a truly collegiate one, and

all judges cooperate in the drafting of the final decision”). The CJEU refers to the Court of Justice of the

European Union. Id. at 5. See also François Luchaire & Georges Vedel, La transposition des opinions

dissidentes en France est-elle souhaitable? “Contre”: le point de vue de deux anciens membres du

322 CONNECTICUT LAW REVIEW [Vol. 54:2

John Ferejohn and Pasquale Pasquino provide an illustrative example from

Italy. The Italian Constitutional Court considered a statute that made it

impossible to sue or prosecute the five highest public officials in Italy.

Initially, by an 8-7 vote, the court’s justices deemed the law unconstitutional

and required a constitutional amendment to enable the law. To persuade the

minority to join the court’s opinion, the majority still deemed the law

unconstitutional but held that it could be revised to satisfy constitutional

requirements without the need for a constitutional amendment.

100

In short, the historical record illustrates a critical point. Under a norm of

consensus, the U.S. Supreme Court did not simply follow the majority

position, with the minority giving an unqualified acquiescence. Rather,

Justices on both sides of the ideological spectrum moved toward their

counterparts to fashion an opinion onto which all could sign. The norm of

consensus did much to promote the due process principle of a judicial

process that lacks an ideological bias and instead reflects both sides of the

ideological spectrum.

And as discussed earlier,

101

the need to find consensus does not simply

cause Justices to split their differences. Rather, when people with different

perspectives make decisions together, they can identify win-win solutions

that none of them acting alone would have recognized.

In contrast to its earlier norm of unanimity, consensus on the Court today

occurs less than half of the time—during the past decade, one or more

Justices dissented in 54% of rulings.

102

Chief Justice John Roberts spoke

wisely when he observed that greater consensus on the Court is desirable

and that the Court functions best “when it can deliver one clear and focused

opinion.”

103

More importantly, decision-making by consensus would bring

the Court into conformity with the constitutional requirement of due process.

Due process is important not only for the litigants before a court but also for

the public generally. This is especially the case when the Court decides issues of

great moment and that go to the heart of our representative system of government,

such as the question of political gerrymandering. For these questions, it is critical

that the public feel that the Court reaches its decisions fairly.

Conseil constitutionnel [Is the Transposition of Dissenting Opinions in France Desirable? “Against”:

The Point of View of Two Former Members of the Constitutional Council], C

AHIERS DU CONSEIL

CONSTITUTIONNEL (July 2000), https://www.conseil-constitutionnel.fr/nouveaux-cahiers-du-conseil-

constitutionnel/la-transposition-des-opinions-dissidentes-en-france-est-elle-souhaitable-contre-le-point-

de-vue-de (observing that “the absence of dissenting opinions facilitates consensus”).

100

Ferejohn & Pasquino, supra note 53, at 1693–94 n.98.

101

See supra text accompanying notes 38–40.

102

Unanimous Cases, SCOTUSBLOG, https://www.scotusblog.com/wp-content/uploads/2021/07/

Unanimous-7.2.21.pdf (last visited Feb. 16, 2022). Between 1941 and 2013, the dissent rate averaged

around 60%. Sunstein, supra note 85, at 780.

103

Reynolds Holding, In Defense of a Divided Court, TIME (Feb. 15, 2007),

http://content.time.com/time/subscriber/article/0,33009,1590461-1,00.html.

2022] JUDICIAL CONSENSUS 323

But concerns about the role of judicial ideology have markedly

increased in recent years. A majority of Americans once expressed strong

confidence in the Court. According to a July 2021 Gallup poll, only 36% do

now.

104

By ensuring ideological balance, a requirement of unanimity would

do much to restore public faith in the Court’s decision-making process. As

a corollary, it also would do much to defuse the highly contentious nature of

judicial appointments. If people on both sides of the ideological spectrum

knew their views would be reflected in Court decisions, they would not have

to fight so hard over appointments to the Court.

In addition to ensuring better decisions and a fairer process,

decision-making by consensus provides other important benefits. For example,

unanimous decision-making ensures greater stability in the law. When the

Supreme Court can decide cases by a majority vote, changes in the composition

of the Court can lead to major changes in the Court’s jurisprudence. With

unanimous decision-making, legal doctrine will develop along a steadier path.

Unanimous decisions also provide greater clarity. With a single,

consensus opinion, the Court would abandon not only the practice of

dissenting opinions, but also the practice of concurring opinions. When the

majority issues multiple opinions explaining its decision, it can be difficult

for lower courts, public officials, lawyers, and the public to know exactly

what the Court held.

105

The proliferation of concurring and dissenting opinions also has raised

concerns about judicial grandstanding.

106

When Justices stake out their own

positions rather than speaking with a single voice, they can elevate their public

profiles to the point of attaining celebrity status.

107

That kind of prominence

can entice Justices to concur or dissent for self-interested reasons.

108

It is often said that concurring and dissenting opinions are important

because they provide a road map to future majority opinions.

109

But road

maps for future majority opinions can be found in court filings and academic

and other commentary. Justices also can indicate future evolution of the law

through their questions at oral argument. More importantly, as mentioned,

104

Megan Brenan, Americans’ Confidence in Major U.S. Institutions Dips, GALLUP (July 14,

2021), https://news.gallup.com/poll/352316/americans-confidence-major-institutions-dips.aspx.

105

Ruth Bader Ginsburg, Remarks on Writing Separately, 65 WASH.L.REV. 133, 148–150 (1990).

106

Meg Penrose, Goodbye to Concurring Opinions, 15 DUKE J. CONST.L.&PUB.POL’Y 25, 41

(2020).

107

Consider in this regard the “Notorious RBG” and the opera, Scalia/Ginsburg.

108

RAFFAELLI, supra note 16, at 10. Concern about judicial grandstanding has led Suzanna Sherry

to argue for the elimination of concurring or dissenting opinions and the issuance of a single opinion by

the Court without disclosure of the author or the votes of the Justices. Suzanna Sherry, Our Kardashian

Court (and How to Fix It), 106 I

OWA L. REV. 181, 182 (2020). While Sherry would not require a

unanimous opinion, as this Article proposes, she does think the elimination of concurring and dissenting

opinions would lead to “more compromise and collaboration.” Id. at 201.

109

Thomas B. Bennett et al., Divide & Concur: Separate Opinions & Legal Change, 103 CORNELL

L. REV. 817, 820 (2018).

324 CONNECTICUT LAW REVIEW [Vol. 54:2

consensus decisions do not create as great a need for change over time. It is

precisely because a majority on one side of the ideological spectrum can

impose its views that there is pressure for revisiting the issue and following

the logic of dissenting opinions.

While there are other ways to promote judicial neutrality, a practice of

unanimous decision-making has important advantages. It can be

implemented by the Justices as a matter of Court rule, as in the past, rather

than through legislation or constitutional amendment.

Moreover, it provides a more reliable guarantee of ideological balance than

do other proposals. For example, while reform could set the number of Justices

at an even number with half the seats reserved for conservative appointments

and half for liberal appointments,

110

ideological balance could be disrupted if

one of the Justices changed ideological perspective, as has happened with

Justices in the past

111

(by way of the “ideological drift” phenomenon).

112

Other proposals also fall short in terms of ideological balance. For

example, it has been common to recommend that the Court’s composition

change more frequently, for example, by having fixed terms of eighteen

years rather than life tenure.

113

Or we might have a rotating bench of nine

Justices, with federal appellate and district court judges eligible for service,

and each bench of nine presiding for a matter of weeks or months.

114

Still,

with either of these approaches, for any given case, there would be a

majority of Justices with either a conservative or liberal predilection.

Indeed, any proposal that retains majority voting will lack ideological

balance on many cases.

115

In addition, proposals to deviate from a bench with lifetime tenure can

exacerbate rather than defuse ideological polarization. As discussed later in

the section on game theory,

116

consensus decision-making is more likely

when people have frequent and regular interactions with each other on an

indefinite time horizon.

This is not to entirely reject other proposals for reform. Many of them

would reinforce the benefits of unanimous decision-making. For example, if

appointments to the Court were evenly divided between conservative and

liberal Justices, that would enhance ideological balance.

110

Orentlicher, Ideological Balance, supra note 77, at 420–22; Segall, supra note 77, at 553–56.

111

Orentlicher, Ideological Balance, supra note 77, at 427.

112

Epstein et al., supra note 76, at 148687.

113

Epps & Sitaraman, supra note 77, at 173 (discussing term limit proposals by other writers).

114

Id. at 181–84; John O. McGinnis, Justice Without Justices, 16 CONST.COMMENT. 541, 541

(1999).

115

Epps and Sitaraman suggest a supermajority of 6-3 for the Court to declare a federal statute (and

possibly a state statute) unconstitutional, Epps & Sitaraman, supra note 77, at 182, but sometimes there will

be six conservative or liberal Justices, and 5-4 majorities would be possible in non-constitutional cases.

116

See infra text accompanying notes 193–195.

2022] JUDICIAL CONSENSUS 325

But it still would be important to require unanimous decision-making to

ensure that all decisions reflect both sides of the ideological divide. In other

words, unanimity is a necessary reform that can be supplemented with other

reforms. And because unanimous decision-making can be implemented by

the Court on its own, while other reforms would require legislation or a

constitutional amendment, it would be important to start the process of

reform by requiring unanimous decisions.

The German Constitutional Court provides a useful example of

consensus-based decisions supplemented by other policies. While dissenting

opinions are permitted, they are discouraged, and they are written

infrequently. Consensus is the norm in Germany.

117

An important factor in

promoting consensus lies in the appointment process. The court’s justices

must secure approval by a two-thirds vote of the legislators, and this

excludes nominees with extreme opinions in favor of more moderate

nominees who are more closely aligned in their perspectives.

118

In sum, the due process principle of a neutral court demands an

ideologically balanced court, and unanimous decision-making provides that

kind of balance. Moreover, the Supreme Court’s experience in the past with

a norm of consensus demonstrates that the Court could function effectively

with a requirement of unanimity. As mentioned, Part VI will consider in

greater detail why the Court would function effectively with a requirement

of unanimity.

III. J

UDICIAL UNANIMITY AND ORIGINAL INTENT

What would the Framers think about this? On one hand, they did not

include in Article III of the Constitution a requirement for ideological

balance on the Supreme Court. On the other hand, they did not reject

ideological balance—Article III is silent on the question. Moreover, the

Framers recognized the need to amend the Constitution with a Bill of Rights

that includes the Due Process Clause’s guarantee of impartial courts.

The Framers’ intent is more consistent with unanimous decision-making

than with majority decision-making on the Court. While the Constitution

does not speak to judicial decision-making, the Framers were well aware of

how high courts decided cases in England and the colonial states. There were

two models for decision-making. First was the seriatim model, which the

Supreme Court initially adopted, in which each Justice issued an opinion.

117

Pasquale Pasquino, How Constitutional Courts Make Decisions 10 (Sept. 2016) (unpublished

manuscript) (available at http://www.law.nyu.edu/sites/default/files/upload_documents/9-28%20%20P

asquino%20-Kumm-Weiler%20Colloquium.%20.pdf).

118

Id. at 2–3; Structure, BUNDESVERFASSUNGSGERICHT, https://www.bundesverfassungsgeric

ht.de/EN/Das-Gericht/Organisation/organisation_node.html (last visited Sept. 19, 2021). As I have

suggested, I prefer reforms other than Germany’s two-thirds vote for judicial appointments to supplement

a requirement of unanimity. It would be better to have Justices bring a wider, rather than narrower, range

of perspectives to the Supreme Court bench. Orentlicher, Ideological Balance, supra note 77, at 424.

326 CONNECTICUT LAW REVIEW [Vol. 54:2

This was the predominant model both in England and the colonies and had

a long pedigree in England, dating back to the time of William the Conqueror

in the eleventh century.

119

Most likely, the Framers assumed the Justices of

their new Supreme Court would decide cases seriatim.

But as discussed, when each Justice issues an opinion, it can be difficult

to discern a rule of law. So, some British and American courts went in the

other direction, as the Supreme Court did under Chief Justice Marshall, and

decided cases with a single opinion for the court. A notable example in

England was the King’s Bench in England between 1756 and 1788 under

Lord Chief Justice William Murray, known as Lord Mansfield.

120

The

Virginia Supreme Court, then known as the Court of Appeals, also

experimented with a single decision of the court when Edmund Pendleton

served as chief judge from 1778–1803.

121

What is important about both of these models, seriatim opinions or

single opinions, is that each Justice has an equal voice in shaping the Court’s

decision. With seriatim opinions, they all speak separately, while with single

opinions, they all speak together. Majority decisions, on the other hand,

often exclude the views of some of the Justices and as many as four of the

nine on the bench. A requirement of unanimity would once again ensure that

all of the Justices have a voice in the Court’s opinions.

With unanimous opinions and their ideological balance, the Court also

would be more faithful to the Framers’ basic design for our constitutional

system. The Founding Fathers worried greatly about “factions” pursuing their

self-interest to the detriment of the overall public good and the interests of the

minority. Accordingly, the constitutional drafters devised a system that they

thought would contain the influence of factions.

122

For example, Federalist

No. 10 discussed how the nature of a national government could mitigate

factional conflict.

123

Narrow factions thrive most in small, homogeneous

constituencies in which it is more feasible for a parochial interest to represent

majority sentiment. In large, heterogeneous constituencies, on the other hand,

narrowly focused factions find it difficult to attract broad support for their

views. Large republics like the United States generate a great variety of

interests and factions, and that would prevent a single faction from substituting

its preferences for the common good or disregarding the rights of the

minority.

124

As James Madison wrote in Federalist No. 10, as the size of a

nation expands:

119

Henderson, supra note 80, at 292.

120

Id. at 292–94.

121

Id. at 304.

122

GEOFFREY R. STONE ET AL., CONSTITUTIONAL LAW 15–17 (7th ed. 2013).

123

THE FEDERALIST NO. 10, at 53 (James Madison) (Modern Library ed., 1941).

124

Id. at 58, 60–61.

2022] JUDICIAL CONSENSUS 327

[Y]ou take in a greater variety of parties and interests; you

make it less probable that a majority of the whole will have a

common motive to invade the rights of other citizens; or if

such a common motive exists, it will be more difficult for all

who feel it to discover their own strength, and to act in unison

with each other.

125

In addition, by having a representative democracy instead of a pure

democracy modeled on the town meeting where all citizens have a vote, the

new country could rely on its legislators to promote the public good. As

discussed in Federalist No. 10, the Constitution’s system of representation

would “refine and enlarge the public views, by passing them through the

medium of a chosen body of citizens, whose wisdom may best discern the

true interest of their country, and whose patriotism and love of Justice will

be least likely to sacrifice it to temporary or partial considerations.”

126

These two factors—a large republic and a select body of elected

officials—would further combine to protect against factional influence.

Elected officials with larger constituencies would become less attached to

local, parochial interests and more devoted to the good of the nation.

127

Relatedly, legislators would ensure that public policy reflects the interests

of both the majority and minority.

128

The Framers supplemented these safeguards with an additional protection

against factional dominance. Federalist No. 51 spoke to the remedy for

situations in which factions overcome the obstacles of large, heterogeneous

constituencies and are able to gain political power.

129

By dividing the national

government’s power among three branches and pitting the interests of one

branch against the interests of the other branches, the Constitution would

ensure that the anti-social efforts of factions in one branch of government

could be checked by the other branches of the national government.

130

Just as the Framers wanted legislators to promote the welfare of all rather

than the interests of some, so did they want a judiciary that would rise above

faction. The Framers did not expect—nor did they desire—a Supreme Court

that would reflect the views of only one side of the ideological spectrum.

Indeed, when Alexander Hamilton explained the Constitution’s appointment

provisions in Federalist No. 76, he emphasized the need to avoid nominations

that reflect partiality instead of the overall public interest.

131

125

Id. at 61.

126

Id. at 59.

127

Id. at 59–60.

128

Norman A. Graebner, Government Without Consensus, 54 VA.Q.REV. 648, 657 (1978).

129

THE FEDERALIST NO. 51, at 339 (Alexander Hamilton or James Madison) (Modern Library ed.,

1941).

130

Id. (discussed in STONE ET AL., supra note 122, at 21).

131

THE FEDERALIST NO. 76, at 491, 494–95 (Alexander Hamilton) (Modern Library ed., 1941). The

discussion of the appointment provisions applied to nominations for all offices.

328 CONNECTICUT LAW REVIEW [Vol. 54:2

The increasing politicization of Supreme Court nominations illustrates the

Framers’ concerns about factional activity. When a bare majority of five Justices

can determine the path of the law, the stakes are high with each new

appointment to the Court, and interest groups on both sides of the political aisle

wage aggressive campaigns to support or oppose the President’s nominees.

Over time, the battle over Court appointments has become increasingly

divisive. While the U.S. Senate approved the appointment of Justice Scalia

by a vote of 98-0 in 1986, his successor, Justice Neil Gorsuch, reached the

Court on a 54-45 vote in 2017. Similarly, the Senate approved Justice Ruth

Bader Ginsburg by a vote of 96-3 in 1993, while her successor, Justice

Barrett, squeaked by on a vote of 52-48 in 2020.

132

Partisan opposition can be especially fierce when the appointment will

decide whether the Court has a conservative or liberal majority. Thus, when

Democratic President Barack Obama nominated U.S. Court of Appeals

Judge Merrick Garland to a Court left with a 4-4 ideological balance after

the death of Justice Scalia in 2016, the Republican-controlled Senate

blocked the appointment by denying a committee hearing or floor vote.

133

Ultimately, the strategy paid off when the election of President Donald

Trump gave Republicans the chance to restore a conservative majority on

the Court with the appointment of Justice Gorsuch.

If decisions were issued unanimously, then there would be much less at

stake with each appointment. No longer could each side of the ideological

spectrum hope to control the Court’s direction by securing a majority of

like-minded Justices on the bench. The factional battle over judicial

appointments that the Framers feared would be much defused.

The Due Process Clause and original intent both support ideological

balance on the Court. As discussed in the next section, the Court’s

precedents are consistent with such a requirement.

IV.J

UDICIAL UNANIMITY AND SUPREME COURT PRECEDENT

The Supreme Court has not considered the question of an appellate

court’s ideological skew. Rather, the Court has addressed concerns about a

single judge’s ideological preferences. In its cases, the Court has observed

that constitutional problems do not arise when a judge favors one or another

ideological view.

134

Anyone with the appropriate training and experience for

the judiciary will have opinions on important legal issues. According to the

132

Supreme Court Nominations (1789-Present), U.S. SENATE, https://www.senate.gov/pagelayout

/reference/nominations/Nominations.htm (last visited Dec. 10, 2021).

133

Ron Elving, What Happened with Merrick Garland in 2016 and Why It Matters Now, NPR (June

29, 2018, 5:00 AM), https://www.npr.org/2018/06/29/624467256/what-happened-with-merrick-garland-

in-2016-and-why-it-matters-now.

134

The Court’s opinion in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), provides

a nice summary of the Court’s discussions of the topic.

2022] JUDICIAL CONSENSUS 329

Court, due process prohibits partiality toward a party to a proceeding, not

partiality toward a legal view that the party might advocate.

135

But there are important reasons to distinguish Court discussions of the

issue. As indicated, the Court has not decided the question whether an

appellate court must exhibit overall ideological balance. Rather, the Court

has considered the question of partiality for individual judges. Moreover, it

has done so in cases addressing other issues of judicial neutrality. In other

words, its observations on ideological partiality are dicta not essential to the

holdings of the Court. In Republican Party of Minnesota v. White, for

example, the issue before the Court was whether a state could prohibit

judicial candidates from announcing their positions on issues that might

come before them if elected.

136

In another case, Tumey v. Ohio,

137

the issue

before the Court was whether judges could have a financial stake in the

outcome of their decisions.

138

Further, the Court’s reasoning in those and other cases is consistent with

a due process argument in favor of a Court that decides cases in an

ideologically balanced way. In Republican Party of Minnesota, the Justices

discussed the kinds of partialities that should disqualify a judge, and the

Court wrote that a judge’s ideological predilection is not disqualifying in the

way that a personal financial interest is disqualifying.

139

It took that view in

Republican Party of Minnesota and earlier cases because anyone who has

the experience and training that would be desirable in a judge will inevitably

develop an ideological leaning.

140

And as discussed earlier, there is much

benefit to having a bench of Justices with a range of ideological perspectives.

But the fact that we have individual Justices with ideological leanings does

not prevent us from ensuring an overall ideological balance on the Court.

Under a fair reading of the Constitution, litigants ought to be able to ensure

that their cases are decided in an ideologically balanced way.

In addition, it is difficult to identify a good reason for permitting the

Court’s holdings to be decided by a majority on one side or the other of the

ideological spectrum. While we can point to the principle of majority rule to

justify conservative or liberal control in the executive or legislative

branches, popular majorities do not deserve special recognition in a judicial

branch that should be guided by legal principle rather than prevailing

sentiment. There is no good normative argument for majority rule on the

135

Id. at 775–78.

136

Id. at 768. The Court held that the prohibition violated the First Amendment. Id. at 788.

137

273 U.S. 510 (1927).

138

Id. at 514–15. The Court held that the judge’s financial interests violated due process. Id. at 535.

The Court also required recusal of a judge when deciding a case that involved the interests of a person

who spent an extraordinary amount of money ($3 million) to support the election of the judge, mostly

through independent expenditures. Caperton v. A. T. Massey Coal Co., 556 U.S. 868, 872 (2009).

139

536 U.S. at 775–78.

140

Id. at 777–78.

330 CONNECTICUT LAW REVIEW [Vol. 54:2

Supreme Court or other courts of appeal. I will take up this argument in more

detail in the next section.

V.M

AJORITY RULE LACKS NORMATIVE JUSTIFICATION

As Jeremy Waldron has observed, majority decision-making is

generally assumed to be appropriate on courts, and the question of its

propriety has attracted little attention.

141

But when one considers the

arguments in favor of majority rule, they come up short.

For example, proponents of majority decision-making argue that the

majority is more likely to be correct than the minority. This is accurate as

far as it goes, but it ultimately fails to justify majority decision-making by

appellate courts. For just as a majority is more likely to be correct than a

minority, so are a unanimous Court’s decisions more likely to be correct than

those of a simple majority.

142

If one believes that there is a right answer that

the Justices can discover, then unanimous decision-making should be

preferred to majority decision-making.

There is a more important argument in favor of unanimity. As indicated

before, there generally is no “right” answer for important legal questions.

The best answer is the answer that reflects the full range of perspectives.

Consider in this respect the previous example of a right to aid in dying. If

one prizes self-determination, then one might conclude that a right to aid in

dying is the better policy. Similarly, if one prizes the preservation of life,

one might say that a ban on aid in dying is the better policy. But when both

values are important, the best policy will be the policy that reflects both

values rather than simply vindicating the value that has majority support.

Or consider the contrast between an election and a judicial decision.

When voters go to the polls, they typically face a binary choice—either a

Democrat or Republican will win.

143

In such situations, the argument for

majority voting makes sense. If only one side can win, going with the

majority is most consistent with each vote counting equally. But Supreme

Court decisions do not involve binary choices where only one side can win.

Rather, the Court can choose among options that reflect the concerns of both

141

Waldron, supra note 18. While Waldron questioned the principle of majority rule on the

Supreme Court, he did not, in the end, recommend its abandonment. Id. at 1730.

142

Bernard Grofman & Scott L. Feld, Rousseau’s General Will: A Condorcetian Perspective, 82

M.POL.SCI.REV. 567, 571 (1988). Of course, requiring unanimous decisions increases the risk of no

decisions, so the advantage of accuracy might be outweighed by the disadvantage of failing to reach a

decision at all. As I discuss, the experience of juries, of the Supreme Court before 1941, and of

contemporary high courts in European countries, as well as principles of game theory, all indicate that a

requirement of unanimity would not prevent the Court from deciding cases.

143

In some races, there will be independent or third-party candidates. Still, the voter must choose

just one candidate. See generally 3rd-Party Candidates Play a Role in U.S. Elections, S

HAREAMERICA

(Apr. 30, 2020), https://share.america.gov/3rd-party-candidates-play-role-in-u-s-elections/ (discussing

the role of independent and third-party candidates in presidential elections).

2022] JUDICIAL CONSENSUS 331

sides of the ideological spectrum. With abortion, for example, a very

conservative Court might reject a right absent a threat to the pregnant

patient’s life. A very liberal Court might permit abortion freely until birth.

And a Court of conservatives and liberals can recognize a right that better

reflects both the interest in individual autonomy and the interest in the

preservation of life. In other words, the Court does not have to make a binary

choice between a right and no right; rather, it decides how broad or narrow

the right will be. Instead of allowing abortion until birth when it recognized

a constitutional right, the Court allowed abortion until viability.

144

Instead of

permitting minors to obtain abortions on their own, the Court allowed states

to require parental consent (with a judicial bypass option).

145

When dealing

with Supreme Court decisions, the best way to ensure that the views of all

Justices are taken into account is to fashion a decision that all of the Justices

can support.

Proponents of majority decision-making also tout its efficiency.

146

It is

easier to assemble a majority of five than a consensus of nine. In this view,

a requirement of unanimity would result in too much gridlock and not

enough cases being decided. In his defense of simple majority decisions,

Guha Krishnamurthi cites the problem of gridlock as the key deficiency of

supermajority voting rules. As he observes, under such a regime, when the

Justices would reach supermajority decisions, they would operate quite

effectively. But when they would fail to reach a decision, a lower court or

someone else would end up deciding the issue, and that makes for a less

desirable process.

147

Critics of consensus decision-making overestimate the problem of gridlock.

It is not a significant problem with juries and their requirement of unanimous

decisions. Nor is it a problem for high courts in other countries or for the

Supreme Court under its previous norm of consensus before 1941. Moreover,

when one considers principles of game theory, it becomes clear that gridlock

would not be a significant problem for the Court today either. I take up the

concern about gridlock in more detail in the next section of this Article.

VI.P

OTENTIAL CONCERNS WITH JUDICIAL UNANIMITY

In general, concerns about cost, efficiency, and fairness have limited

policies to address judicial partiality.

148

For example, one solution is recusal

144

Roe v. Wade, 410 U.S. 113, 163 (1973).

145

Bellotti v. Baird, 443 U.S. 622, 64344 (1979).

146

Waldron, supra note 18, at 1710–12 (describing and rejecting the efficiency argument). See also

Krishnamurthi, supra note 18, at 1231, 1236 (observing that majority decision rules are efficient and

supermajority rules are not in terms of how quickly decisions can be reached and how likely it is that

decisions will be reached).

147

Krishnamurthi, supra note 18, at 1236, 1256-57.

148

Geyh, supra note 73, at 514–15.

332 CONNECTICUT LAW REVIEW [Vol. 54:2

of the partial judge. But if reasons for recusal are not strictly limited, litigants

might clog the courts with baseless recusal motions,

149

and lawyers might

exploit the rules to game the system in favor of their clients.

150

Members of

the Court also have worried about strict recusal rules because there is no one

who can step in for a disqualified Justice.

151

And if the concern is ideological

partiality, all Justices would have to recuse.

A requirement of unanimity avoids the concerns raised by judicial

disqualification or other remedies. Unanimous decision-making promotes

impartiality not by removing partial Justices, but by counterbalancing their

partialities. Moreover, its implementation would be simple—it can be

adopted by the Court on its own without the need for legislation, executive

action, or constitutional amendment. Indeed, this Article argues that the

Court is obligated by the Due Process Clause to adopt a requirement of

unanimity, supplemented by other reforms, to ensure ideological balance.

Still, one might worry that a unanimity requirement would lead the

Court to deadlock with some frequency and leave too many issues to be

decided by the lower courts.

152

As veto points theory instructs, the greater

the number of decision-makers with a veto power, the less likely that

changes in policy will occur.

153

It is generally easier to secure the agreement

of two officials than that of three or more.

154

If unanimous decisions are

required, the Court would potentially have nine veto players.

The potential for gridlock is not a sufficient reason to override principles

of due process. Juries have as many as twelve veto players, and the potential

for a hung jury does not create a sufficient basis for relaxing the requirement

of a unanimous jury in criminal or federal civil cases. In addition, limiting

veto points on the Court comes at a substantial price—not having decisions

made by Justices with different perspectives, experiences, ethnicities, races,

and sexes.

Several considerations indicate that the problem of deadlock will be

small and therefore that the benefits of unanimity would far outweigh its

costs. First, as veto points theory recognizes, the number of veto players is

not the only significant factor—so is the congruence of the veto players’

149

Caperton v. A. T. Massey Coal Co., 556 U.S. 868, 890–91, 899–900 (2009) (Roberts, C.J.,

dissenting).

150

Id. at 903 (Scalia, J., dissenting).

151

Gabriel D. Serbulea, Comment, Due Process and Judicial Disqualification: The Need for

Reform, 38 P

EPP.L.REV. 1109, 1136–38 (2011). For a comprehensive consideration of recusal at the

Supreme Court, see L

OUIS J. VIRELLI, III, DISQUALIFYING THE HIGH COURT:SUPREME COURT RECUSAL

AND THE

CONSTITUTION (2016).

152

Under this proposal, a failure of the Court to reach a decision would leave the lower court

decision in effect, as does an inability for the Court to decide a case currently.

153

George Tsebelis, Decision Making in Political Systems: Veto Players in Presidentialism,

Parliamentarism, Multicameralism and Multipartyism, 25 B

RIT.J.POL.SCI. 289, 305–08 (1995).

154

Id. at 295–96.

2022] JUDICIAL CONSENSUS 333

views.

155

Replacing Justice Anthony Kennedy with Justice Brett Kavanaugh

did not have a practical effect on the ability of the current Court to reach

consensus decisions since Justice Kavanaugh’s perspectives lie within the

ideological range already determined by Justice Sotomayor on the left and

Justice Thomas on the right.

156

If an opinion would be conservative enough

for Justice Thomas, odds are it would be conservative enough for Justice

Kavanaugh. Functionally under a requirement of unanimity, a Court of nine

will generally have only two true veto players, though the identities of those

players will vary somewhat from case to case.

157

In addition, the Court has an obligation to resolve critical legal

questions, and we can expect Justices to fulfill the duties of their position.

As Justice Elena Kagan observed when the Court had a 4-4 ideological split

between the death of Justice Scalia and the appointment of Justice Gorsuch,

the Justices had a greater need to find common ground, and they worked

harder to do so.

158

To be sure, the Court also punted on some cases, deferring

consideration until a ninth Justice was appointed.

159

But the option of

deferring consideration offers little potential for gain when decisions must

be reached unanimously. In those circumstances, there would not be any

looming changes in the Court’s composition that would allow one or the

other side of the ideological divide to gain control. In short, while the Court’s

discretion to deny certiorari would allow it to abstain from deciding hard

cases, its essential constitutional role would discourage abstention.

Similarly, the self-interest of the Justices would reinforce their fidelity

to their judicial responsibilities. The Justices would have a strong personal

incentive to find common ground. Supreme Court Justices want to leave

their imprint on the law—after spending years, if not decades, maneuvering

for a Court appointment and having reached the pinnacle of the legal

profession, they would be driven by their desire to leave an important

judicial legacy. If the Justices spent their years on the Court bogged down

in gridlock, they would not be able to issue key decisions that would allow

155

Id. at 308–11.

156

Amelia Thomson-DeVeaux, The Supreme Court Might Have Three Swing Justices Now,

IVETHIRTYEIGHT (July 2, 2019, 6:00 AM), https://fivethirtyeight.com/features/the-supreme-court-

might-have-three-swing-justices-now/.

157

For example, while Justice Scalia voted with the other conservative Justices on most issues, he

voted with the more liberal Justices on Fourth Amendment issues. Sonia Sotomayor, Tribute, A Tribute

to Justice Scalia, 126 Y

ALE L.J. 1609, 1610 (2017). In those cases, Justice Scalia was not a veto player

on the conservative side of the Court’s ideological range.

158

Patrick Marley, Justice Elena Kagan Says Court Had to Reach More Consensus After Antonin

Scalia’s Death, M

ILWAUKEE J. SENTINEL, http://www.jsonline.com/story/news/politics/2017/09/08/just

ice-elena-kagan-says-court-had-reach-more-consensus-after-antonin-scalias-death/646125001/ (Sept. 8,

2017, 7:19 PM).

159

See May Mon Post, Justice Scalia’s Death Throws SCOTUS Term into Turmoil, JDSUPRA (Aug.

8, 2016), https://www.jdsupra.com/legalnews/justice-scalia-s-death-throws-scotus-78633/ (describing

instances in which the Court deferred consideration after Justice Scalia’s death).

334 CONNECTICUT LAW REVIEW [Vol. 54:2

them to make a difference in resolving major legal questions. Accordingly,

they would come to accommodations that would let them decide cases.

Moreover, decision-makers adjust their behavior to their decision-making

rules. As the discussion of jury deliberations indicates, when a simple majority

can prevail, people tend to look for simple majority positions.

160

On the other

hand, when unanimity is required, people will look for positions that can

generate consensus. Consider, for example, the Court’s decision in Brown v.

Board of Education.

161

After the initial oral argument, the Justices voted, at

their private conference, to allow separate schools for Black and white

students. But with a re-argument and the replacement of Chief Justice Fred

Vinson, the Justices split 6-3 against separate schools. While the case could

have been decided along those lines, Chief Justice Earl Warren believed it

important that the Court strike down school segregation unanimously, and he

was able to achieve that goal by writing a consensus-driven opinion.

162

Or consider how a norm of consensus operates in the Quaker

community. As an ethnography of Quaker decision-making observes, the

process rests on a principle of “unity,” in which members of the faith

community meet together on equal footing to identify resolutions to which

all members can subscribe: “This does not mean that everyone has to

completely agree with every aspect of the decision, but it does mean that

everyone must feel it right to let the decision go ahead.”

163

Of course, what is “right” for Quakers is based on what is right “in the light

of God’s guidance.”

164

For a secular court, what is right would depend on

considerations of legal principle, public welfare, and other important values.

What is critical for Quakers’ decision-making, however, is not that they seek

unity according to God’s guidance, but that they are committed to finding unity.

The Quaker business meetings are premised on the assumption that each

person has a valuable perspective and that all perspectives should be given

careful consideration. To be sure, this does not mean that all views must be

accepted—the goal is to come to a good decision—but it does mean that all

views should be taken seriously.

165

During the meetings, as the Friends share their perspectives, a Clerk is

tasked with identifying a “sense of the meeting” and drafting a resolution

(the meeting “minute”) which all can support.

166

The Quaker approach “can

achieve a unity which incorporates the minority position.”

167

As the

160

See supra text accompanying notes 47–50.

161

347 U.S. 483 (1954).

162

Ulmer, supra note 98, at 691–700.

163

ANTHONY BRADNEY &FIONA COWNIE,LIVING WITHOUT LAW:AN ETHNOGRAPHY OF QUAKER

DECISION-MAKING,DISPUTE AVOIDANCE AND DISPUTE RESOLUTION 71 (2000).

164

Id.

165

Id. at 73.

166

Id. at 75, 77.

167

Id. at 80.

2022] JUDICIAL CONSENSUS 335

ethnographers concluded, “there are in the end no deep divisions, no winners

and losers in the conventional sense. . . . It is a method which assumes

ownership of the decision by all who are present.”

168

This last point is critical in terms of the ability of a group to reach

consensus. As principles of dispute resolution recognize, people need to be

involved in the process of reaching a decision for them to make the

accommodations necessary for a consensual outcome.

169

Under a rule of

unanimity, all nine Justices would participate in the decision-making

process, and that would give them all the kind of stake in the process that

makes consensual decision-making work.

Or to put it another way, consensus decision-making promotes healthy

competition among different viewpoints, while the ability to secure majority

control of the Court invites hypercompetitive behavior that can stifle the give

and take important to civil discourse and attainment of the common good.

170

Consensus decision-making also has been a hallmark of Native

American indigenous communities. As Kahente Horn-Miller has written,

such a process is designed to engage all members of the community who

rely on “calm deliberation, respect for diverse views, and substantial

agreement” to reach a resolution that is “in the best interests of the

community and not only themselves as individuals.”

171

And this is not surprising. Recall the earlier point that when people from

different perspectives make decisions together, they are more likely to come

to novel insights and win-win outcomes.

172

Other empirical evidence supports this Article’s view that Justices can

decide their cases unanimously. Most importantly, as discussed, the Supreme

Court operated under a norm of consensus for most of its history. The Court

not only can decide cases unanimously, it once did so more than 90% of the

time, even when not required to.

173

This experience reflects the fact that there always will be common

ground on which the majority and minority can settle. Indeed, even with a

majority decision-making rule, Justices often seek common ground. Thus,

for example, the Roe Court did not reject a right to abortion, nor did it

168

Id.

169

ROGER FISHER &WILLIAM URY,GETTING TO YES:NEGOTIATING AGREEMENT WITHOUT

GIVING IN 27 (Bruce Patton ed., 2d ed. 1991).

170

Michael Miller & Samuel A. Thumma, It’s Not Heads or Tails: Should SCOTUS Have an Even

or Odd Number of Justices?, 31 S. C

AL.INTERDISC. L.J. (forthcoming) (manuscript at 68) (available at

https://gould.usc.edu/why/students/orgs/ilj/assets/docs/31-1-Thumma.pdf) (citing Karen Horney, Culture

and Neurosis, 1 A

M SOC.REV. 221 (1936)).

171

Kahente Horn-Miller, What Does Indigenous Participatory Democracy Look Like?

Kahnawà:ke’s Community Decision Making Process, 18 R

EV.CONST.STUD. 111, 115–16 (2013).

172

See supra text accompanying notes 38–40. For other important examples of consensus-based

decision-making in governmental and non-governmental bodies, see Philippe Urfalino, The Rule of Non-

Opposition: Opening Up Decision-Making by Consensus, 22 J.

OL.PHIL. 320, 322–24 (2014).

173

See discussion supra Part II.

336 CONNECTICUT LAW REVIEW [Vol. 54:2

recognize a right to abortion until birth. It reached a position that recognized

interests on both sides of the issue, with a right only until viability. Similarly,

in Heller, the Court neither rejected an individual right to keep and bear

arms, nor did it recognize an unlimited right to possess and carry guns. As

the majority wrote:

[N]othing in our opinion should be taken to cast doubt on

longstanding prohibitions on the possession of firearms by

felons and the mentally ill, or laws forbidding the carrying of

firearms in sensitive places such as schools and government

buildings, or laws imposing conditions and qualifications on

the commercial sale of arms.

174

While the Heller Court was divided by 5-4, there is good reason to think

that the four dissenting Justices—and dissenting Justices in other cases—would

have been more amenable to joining the majority on a Court required to find

consensus. As discussed, when courts issue consensus decisions, the majority

works with the minority to fashion an opinion onto which all can sign.

That the Court will decide cases regularly under a requirement of

unanimity provides reassurance on another concern. One might worry that if

the Court adopts a unanimity rule now, it would preserve the current

ideological bias of its decisions. According to this concern, some Justices

would block new decisions in order to preserve their preferred precedents. But

as discussed, we can be confident that the Justices will decide cases, that they

will meet their judicial responsibility to resolve critical legal questions. And

the consensus that emerges will be the same whether the revised or overridden

precedent was more conservative or more liberal than the new decision.

For the same reason, we need not worry that a unanimous Court would

lead to a structural bias in favor of the currently dominant political

philosophy. According to this line of reasoning, the difficulties in reaching

a unanimous decision would lead the Court to become a less active Court,

leaving more legislative or executive actions intact. For a red federal or state

government, that would mean fewer conservative laws being struck down,

and for a blue federal or state government, there would be fewer liberal laws

struck down. Here, too, the commitment of the Court to its judicial

responsibilities would prevent abdication, and again, it would reach the same

consensus whether it was considering a conservative law or a liberal law.

Historical data are consistent with the view that a unanimous decision

rule would not lead to a less active Court. While not dispositive, the Court’s

caseload over time is instructive. As Cass Sunstein found, a key factor in the

Court’s abandonment of its norm of consensus was the ascent to Chief

Justice of Associate Justice Harlan Fiske Stone in 1941. In contrast to his

174

District of Columbia v. Heller, 554 U.S. 570, 626–27 (2008).

2022] JUDICIAL CONSENSUS 337

predecessors who believed it important for the Court to speak with one

voice, Stone encouraged the expression of dissenting and concurring

viewpoints.

175

If consensus decision-making invites judicial restraint, then

one would expect the Court to have decided more cases after 1941 than

beforehand. In fact, there was little change in the immediate years after 1941,

and starting in 1947, there was actually a substantial decline in the number

of cases decided, a decline that lasted until 1970.

176

More specifically, from

1927 to 1946, the median number of signed decisions was 149.5.

177

Between

1947 and 1970, the median dropped to 99, rising to 129 in the several years

after 1970.

178

It appears that, just as Chief Justice Stone influenced the

Court’s decision-making norm, his successors influenced the Court’s

workload.

179

And importantly, the Court’s degree of activity did not seem to

reflect whether or not it operated under a norm of consensus.

One also might wonder whether the changes on the Court or the political

environment that led to the abandonment of the norm of consensus would

preclude a restoration of that norm. Sunstein’s careful analysis of the Court’s

change in practice is reassuring. As mentioned, he concluded that Chief

Justice Stone drove the elimination of the norm.

180

If the Court could decide

on its own to jettison its norm of consensus, the Court can decide on its own

to bring the norm back.

181

Other scholars have suggested other factors in the departure from

consensus, but those potential contributors seem much less important or

consistent with a return to consensus decisions. For example, scholars have

pointed to the almost complete turnover in the Court’s membership between

1937 and 1941.

182

The new Justices may have been much less receptive to a

norm of consensus. But as Sunstein observes, Felix Frankfurter, Hugo

Black, William Douglas, and other new Justices adhered to the norm of

consensus for the years between their appointments and 1941.

183

And even

if the departure from consensus was driven by multiple Justices rather than

175

Sunstein, supra note 85, at 790–94. See also Thomas G. Walker, Lee Epstein & William J.

Dixon, On the Mysterious Demise of Consensual Norms in the United States Supreme Court, 50 J. P

OL.

361, 384 (1988) (attributing “much of the responsibility” for abandoning the norm of consensus “to the

leadership of Harlan Fiske Stone”).

176

Arthur D. Hellman, The Business of the Supreme Court Under the Judiciary Act of 1925: The

Plenary Docket in the 1970’s, 91 H

ARV.L.REV. 1711, 1730–32 (1978).

177

Id. at 1730. It makes sense to start around 1927 because Congress gave the Court much greater

discretion to decline cases under the Judiciary Act of 1925.

178

Id. at 173031.

179

Id. at 1733–34.

180

Sunstein, supra note 85, at 790–94, 816.

181

A study of consensus on the Supreme Court of Canada also found that the degree of consensus

depended to a considerable extent on the preferences of the Court’s Chief Justices. Emmett Macfarlane,

Consensus and Unanimity at the Supreme Court of Canada, 52 S

UP.CT.L.REV. 379, 409–10 (2010).

182

CORLEY,STEIGERWALT &WARD, supra note 57, at 18–22.

183

Id.; Sunstein, supra note 85, at 793–94. Still, the new Justices may have facilitated abandonment

of the norm of consensus by being receptive to such a change in Court practice. Id. at 816.

338 CONNECTICUT LAW REVIEW [Vol. 54:2

just Chief Justice Stone, the current Justices could come together today and

agree to decide their cases unanimously.

Pamela Corley and colleagues have cited the Judiciary Act of 1925’s

grant of discretion to the Court over its docket, but that change does not

connect well with the change in the norm of consensus. After 1925, the Court

could decline certiorari for a large number of uncontroversial cases that

previously had taken up much of the Court’s attention.

184

With fewer

uncontroversial cases, one would expect the percentage of non-unanimous

cases to go up significantly, even if the total number of non-unanimous cases

did not change. But the departure from consensus didn’t occur until 1941,

well after the increase in Court discretion.

185

In addition, a study of the Taft

Court found that the Justices were just as likely to reach consensus on their

discretionary docket as on their mandatory docket.

186

That restoring a norm of consensus is feasible also is suggested by other

examples. Consider in this regard the overseas experience. As mentioned,

high courts in a number of European countries issue a single opinion without

dissents or concurrences. While unanimity is not required, the requirement

of a single opinion leads the judges in these countries, including France,

Italy, and Belgium, to seek consensus as much as possible.

187

Judges taking

the minority view are more likely to participate in the court’s deliberations.

On these courts, “the decision-making process is a truly collegiate one, and

all judges cooperate in the drafting of the final decision.”

188

In Italy, for

example, a member of the court drafts an opinion that “is examined and

discussed by the other members, and only when the agreement of the whole

court is reached does the draft become the opinion of the court.”

189

Juries in the United States provide a clear example of effective

decision-making by consensus. Criminal court juries typically have twelve

members, and they have to reach unanimous decisions.

190

Hung juries occur,

184

CORLEY,STEIGERWALT &WARD, supra note 57, at 23–24.

185

Sunstein, supra note 85, at 795–96.

186

Shugerman, supra note 92, at 918.

187

RAFFAELLI, supra note 16, at 17–20.

188

Id. at 11.

189

Michele Taruffo & Massimo La Torre, Precedent in Italy, in INTERPRETING PRECEDENTS:A

OMPARATIVE STUDY 141, 145 (D. Neil MacCormick & Robert S. Summers eds., 1997). European

constitutional courts differ in other ways from the U.S. Supreme Court. For example, they typically only

decide constitutional matters, and they have exclusive jurisdiction on those matters. They also issue

advisory opinions, generally decide matters without oral argument, and maintain the secrecy of their

deliberations and votes. See Entrikin, supra note 17, at 83 (discussing advisory opinions); Ferejohn &

Pasquino, supra note 53, at 1677–78 (discussing secrecy and lack of oral argument); Kelemen, supra

note 17, at 1362–63 (discussing secrecy).

190

Robert Black, Ramos v. Louisiana: Does the 14th Amendment Require Unanimous Jury

Verdicts?, N

AT’L CONST. CTR.: INTERACTIVE CONST. (Oct. 9, 2019), https://constitutioncenter.org/inter

active-constitution/blog/ramos-v-louisiana-does-the-14th-amendment-require-unanimous-jury-verdicts.

2022] JUDICIAL CONSENSUS 339

but not very often.

191

Moreover, juries reach their unanimous decisions in a

setting that allows for less common ground than does a decision by a judicial

bench. A criminal jury must acquit or convict.

192

Of course, requirements for juror unanimity reflect the gravity of the

decisions at stake. Whether a jury convicts or acquits has enormous

consequences for a criminal defendant. Just as much is at stake with the

Supreme Court. Its decisions can have the same consequences for defendants

when it hears criminal appeals. Other constitutional decisions also can have

profound consequences for the parties and the public generally.

Game theory provides further reason to believe that the Court would find

common ground regularly under a supermajority requirement. Game theory

can identify the kinds of relationships that are likely to encourage

cooperative rather than oppositional strategies.

193

The Supreme Court

includes important elements of cooperative relationships. For example,

when individuals have an ongoing relationship with frequent and repeated

interactions, as with members of the Court, they are much more likely to

choose cooperation with each other than when they have a one-shot

relationship.

194

Cooperation is also more likely in relationships with an

indefinite time horizon, as with Justices who have lifetime appointments,

than when there is a finite time horizon. Finally, cooperation is more

common among individuals who come to their relationship with equal status

and authority. That is true about Supreme Court Justices, except perhaps

with Chief Justices. The extra authority of a Chief Justice may not be that

important, but if it is, we could make the chief’s role a rotating position, as

is the case with some state supreme courts.

195

The equal status of Justices is particularly important. Unlike Congress,

where legislators can employ their veto points and other strategies to improve

their chances for preserving or gaining the power of the majority, Justices on

a Court that requires unanimous decision-making cannot create a power

191

Studies suggest an average hung jury rate of around 6% nationwide. PAULA L.

ANNAFORD-AGOR ET AL., NAT’L CTR. FOR STATE CTS., ARE HUNG JURIES A PROBLEM?: EXECUTIVE

SUMMARY 2 (2002).

192

In some cases, juries can find common ground by convicting on less serious charges. James A.

Shellenberger & James A. Strazzella, The Lesser Included Offense Doctrine and the Constitution: The

Development of Due Process and Double Jeopardy Remedies, 79 M

ARQ.L.REV. 1, 6 (1995).

193

ROBERT AXELROD,THE EVOLUTION OF COOPERATION 124–26 (1984); ITZHAK GILBOA,

ATIONAL CHOICE 100–01 (2010); Ming Zeng & Xiao-Ping Chen, Achieving Cooperation in Multiparty

Alliances: A Social Dilemma Approach to Partnership Management, 28 A

CAD.MGMT.REV. 587, 587

(2003).

194

FISHER &URY, supra note 169, at 37.

195

See, e.g., Supreme Court Judges, MO.CTS., https://www.courts.mo.gov/page.jsp?id=133 (last

visited Sept. 21, 2021) (describing a tradition on the Missouri Supreme Court of elections for chief justice

“on a rotating basis by a vote of all seven Supreme Court judges to a two-year term”). Or consider a

model from Switzerland. The members of the Swiss Federal Council rotate through the position of

president so they remain true equals in the Swiss executive branch. D

AVID ORENTLICHER,TWO

PRESIDENTS ARE BETTER THAN ONE:THE CASE FOR A BIPARTISAN EXECUTIVE BRANCH 116 (2013).

340 CONNECTICUT LAW REVIEW [Vol. 54:2

imbalance. Game theory principles make it unsurprising that the Supreme

Court once was able to observe a norm of consensus decision-making.

Indeed, game theory principles already foster an important degree of

cooperation among the Justices. As Neal Devins and Lawrence Baum have

written, the highly interactive nature of an appellate bench encourages a

norm of collegiality among Justices or judges, and while divided decisions

are not uncommon, unanimous decisions are the most common result.

196

Over the past decade, for example, 46% of the Supreme Court’s merits

decisions were 9-0.

197

The next highest percentage was for 5-4 decisions,

and those accounted for 20% of decisions.

198

Consensus-based decision-making also works well in non-governmental

settings. As discussed, the Quaker business meeting relies on a principle of

unity. The American Medical Association’s Council on Ethical and Judicial

Affairs (the “Council”) also provides a useful example. The Council

develops guidelines for physicians on the full range of ethical questions in

medical practice, including genetic testing, end-of-life decisions, organ

transplantation, and conflicts of interest.

199

The Council also hears appeals

of disciplinary proceedings against physicians by state and other medical

societies.

200

The Council has nine members who reach all of their decisions

by consensus.

201

Under its requirement of unanimity, the Council has been

able to decide its appeals and issue a comprehensive ethics code that

includes guidelines on many controversial matters.

202

For example, the Council has endorsed a pilot program to test financial

incentives for organ donations,

203

rejected physician participation in capital

punishment,

204

and issued guidelines for the ethical use of fetal tissue for

196

NEAL DEVINS &LAWRENCE BAUM,THE COMPANY THEY KEEP:HOW PARTISAN DIVISIONS

CAME TO THE SUPREME COURT 53–54 (2019).

197

Unanimous Cases, supra note 102.

198

Merits Cases by Vote Split, SCOTUSBLOG, https://www.scotusblog.com/wp-content/uploads/2

020/07/Merits-cases-by-vote-split-7.20.20.pdf (last visited Dec. 3, 2021).

199

See Council on Ethical & Judicial Affairs (CEJA) Reports by Year, AM.MED.ASS’N,

https://www.ama-assn.org/councils/council-ethical-judicial-affairs/council-ethical-judicial-affairs-ceja-

reports-year (last visited Sept. 21, 2021) (listing reports issued by the Council).

200

Judicial Function of the Council on Ethical & Judicial Affairs (CEJA),AM.MED.ASS’N,

https://www.ama-assn.org/councils/council-ethical-judicial-affairs/judicial-function-council-ethical-

judicial-affairs-ceja (last visited Sept. 22, 2021).

201

Members of the Council on Ethical & Judicial Affairs (CEJA), AM.MED.ASS’N,

https://www.ama-assn.org/councils/council-ethical-judicial-affairs/members-council-ethical-judicial-

affairs-ceja (last visited Sept. 22, 2021); Governing Rules of the Council on Ethical and Judicial Affairs

(CEJA),A

M. MED. ASS’N, https://www.ama-assn.org/councils/council-ethical-judicial-affairs/governin

g-rules-council-ethical-and-judicial-affairs-ceja (last visited Sept. 22, 2021).

202

James L. Madara, Letter of Introduction, in CODE OF MEDICAL ETHICS (AM.MED.ASS’N 2017).

203

Council on Ethical & Jud. Affs., Am. Med. Ass’n, Financial Incentives for Organ Procurement:

Ethical Aspects of Future Contracts for Cadaveric Donors, 155 A

RCHIVES INTERNAL MED. 581, 588

(1995).

204

Council on Ethical & Jud. Affs., Am. Med. Ass’n, Physician Participation in Capital

Punishment, 270 J. A

M.MED.ASS’N 365, 368 (1993).

2022] JUDICIAL CONSENSUS 341

transplantation or research.

205

Even though people generally, and Council

members specifically, have strong and divergent views on these issues, the

Council was able to forge a consensus.

One might wonder whether decision-making by consensus on the

Supreme Court really would yield ideologically diverse decisions. If all

Justices were either conservative or liberal, then even unanimous decisions

would reflect one side of the ideological spectrum. To some degree, this is a

theoretical rather than practical concern. The Martin-Quinn scores that have

measured the ideological leanings of Justices since 1937 have found a mix

of conservative and liberal Justices throughout the entire eight-decade

period.

206

Still, to the extent that we have to worry whether decision-making

by consensus will ensure ideological balance, the answer is to supplement a

requirement of unanimity with other reforms to ensure ideological diversity

among the members of the Court.

The analogy to the jury is useful here as well. It is essential for juries to

decide their cases unanimously. And it also is important to supplement that

requirement with measures to promote jury diversity. Thus, for example,

peremptory strikes may not be used in a racially-biased manner, and courts

have revised the way they fill their jury pools to increase the diversity of

potential jurors.

If the Court decided all of its cases by consensus, what would that mean

for the role of the judiciary in deciding cases? Courts often are viewed as

engines of social reform. If the Justices had to find common ground, would

the Supreme Court change from a leader of social change into a follower of

social change that is championed by the president or Congress?

Of course, incremental change can be a virtue. By making limited rather

than expansive changes, courts reduce the risk of causing great harm from

erroneous decisions.

207

Proceeding in smaller steps allows courts to test their

theories carefully and maximize the likelihood that they are taking legal

doctrine in the right direction. In addition, by proceeding at an incremental

pace on important issues, courts promote discussion and deliberation by the

public and its elected officials on those issues and the opportunity for

meaningful participation in the decision-making process.

208

Sweeping

decisions short-circuit the democratic process and can provoke stiff

resistance and a backlash that compromise the very principles that the courts

205

Council on Sci. Affs. & Council on Ethical and Jud. Affs., Medical Applications of Fetal Tissue

Transplantation, 263 J. A

M.MED.ASS’N 565, 568–69 (1990).

206

Nate Silver, Supreme Court May Be Most Conservative in Modern History, FIVETHIRTYEIGHT

(Mar. 29, 2012, 8:06 PM), https://fivethirtyeight.com/features/supreme-court-may-be-most-conservativ

e-in-modern-history/.

207

CASS R. SUNSTEIN,ONE CASE AT A TIME:JUDICIAL MINIMALISM ON THE SUPREME COURT 4

(1999).

208

Id.; Barry P. McDonald, Eight Justices Are Enough, N.Y. TIMES (May 26, 2016),

https://www.nytimes.com/2016/06/26/opinion/eight-justices-are-enough.html.

342 CONNECTICUT LAW REVIEW [Vol. 54:2

were trying to advance and leave those principles with weaker recognition

in the end.

209

But even when major change is important, the Supreme Court’s history

demonstrates that Justices from different sides of the ideological spectrum

can come together to issue pathbreaking decisions in appropriate

circumstances. In fact, many of the Court’s landmark decisions enjoyed

broad support among the Justices. When the Court struck down segregated

schools in Brown,

210

and bans on interracial marriage in Loving v.

Virginia,

211

the vote was unanimous.

212

The Court also was unanimous in

recognizing the right to counsel for criminal defendants in Gideon v.

Wainwright,

213

limiting presidential executive privilege in United States v.

Nixon,

214

and establishing First Amendment limits on defamation suits in

New York Times v. Sullivan.

215

Even what is perhaps the Court’s most

controversial modern opinion, Roe v. Wade, enjoyed strong support on both

sides of the ideological spectrum. In Roe, the Court’s 7-2 majority included

conservatives Warren Burger, Lewis Powell, and Potter Stewart.

216

These kinds of decisions are not surprising. Recall the earlier point that

when people with different perspectives make decisions together, they can

identify solutions that none of them acting alone would have recognized.

Rather than merely splitting their differences, they can discover win-win

outcomes that make for better overall results.

217

209

Lincoln Caplan, Ginsburg’s Roe v. Wade Blind Spot, N.Y. TIMES:TAKING NOTE (May 13, 2013,

2:58 PM), https://takingnote.blogs.nytimes.com/2013/05/13/ginsburgs-roe-v-wade-blindspot/; Ruth

Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. R

EV.

375, 381–82 (1985). See also Kelo v. City of New London, 545 U.S. 469, 472, 484 (2005) (upholding

the ability of governments to exercise their power of eminent domain and seize homeowners’ property

for privately operated economic development). After the Supreme Court decided Kelo, public anger

erupted quickly, and it led states across the country to pass statutes curtailing the eminent domain power.

Iiya Somin, Opinion: The Political and Judicial Reaction to Kelo, W

ASH.POST (June 4, 2015),

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/06/04/the-political-and-judicial-

reaction-to-kelo/. Within five years of the Kelo decision, forty-three states revised their eminent domain

statutes to make them more restrictive. Five Years After Kelo: The Sweeping Backlash Against One of

the Supreme Court’s Most-Despised Decisions, I

NST. FOR JUST. (June 2010), https://ij.org/report/five-

years-after-kelo/.

210

347 U.S. 483, 495 (1954).

211

388 U.S. 1, 12 (1967).

212

Brown, 347 U.S. at 495; Loving, 388 U.S. at 12.

213

372 U.S. 335, 344 (1963)

214

418 U.S. 683, 713 (1974)

215

376 U.S. 254, 292 (1964).

216

Roe v. Wade, 410 U.S. 113, 115 (1973). The two dissenting Justices, William Rehnquist and

Byron White, came from the Court’s conservative wing. See Linda Greenhouse, Byron R. White, Supreme

Court Justice for 31 Years, Dies at 84, N.Y.

IMES (Apr. 15, 2002) (“When he retired after 31 years on

the court, he was the last veteran of the liberal era of Chief Justice Earl Warren. But despite his status

then as the court’s sole remaining Democrat, he was in many ways more at home in the conservative era

of Chief Justice William H. Rehnquist.”).

217

See supra text accompanying notes 25–26, 38–40.

2022] JUDICIAL CONSENSUS 343

Of course, not all landmark cases have been decided unanimously or

with only one or two dissenters, as with the Court’s 5-4 decision on the

constitutional right to same-sex marriage.

218

Under a requirement of

consensus, would such landmarks be blocked?

The answer to that question likely turns on whether the majority drew

from both sides of the ideological spectrum, as in Roe. In such cases, as

suggested by the Court’s experience under its past norm of consensus,

219

can expect a unanimous Court to preserve the majority’s general position,

with movement on both sides to find common ground. Consider in this

regard Brown. When the Court decided Brown by a 9-0 vote, rather than by

a 6-3 vote,

220

it maintained the majority’s rejection of segregation in schools

while making other changes in the Court’s opinion to reach consensus.

221

Similarly, with same-sex marriage, since the majority included the more

liberal members of the Court plus the conservative Justice Kennedy, a

unanimous Court likely would have recognized a fundamental right while

making other changes to secure the agreement of the full Court.

222

In contrast, for 5-4 decisions that split on ideological lines, a

requirement of unanimity might have led to a different outcome, especially

if consensus decision-making were supplemented with other reforms to

promote ideological balance. Examples of such decisions include Shelby

County v. Holder

223

and Citizens United v. Federal Elections Commission.

224

218

Obergefell v. Hodges, 576 U.S. 644, 644, 648 (2015).

219

See supra text accompanying notes 89–98.

220

See supra text accompanying note 162.

221

The initial majority of six included liberal Justices Warren and William O. Douglas, as well as

conservative Justices Harold Hitz Burton and Sherman Minton. See Ulmer, supra note 98, at 696–97

(listing the six Justices in the majority) and Andrew D. Martin & Kevin M. Quinn, Dynamic Ideal Point

Estimation via Markov Chain Monte Carlo for the U.S. Supreme Court, 1953-1999, 10 P

OLITICAL

ANALYSIS 134, 146 (2002) (identifying whether individual Justices were relatively conservative or

liberal).

222

This prediction is supported by the fact that the Court solidified protections for the LGBTQ+

community in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), the case in which the Court held that

the federal civil rights act’s prohibition of discrimination on the basis of sex in employment includes

discrimination on the basis of sexual orientation. Notably, while Chief Justice Roberts dissented on the

right to same-sex marriage, Obergefell, 576 U.S. at 686–713 (Roberts, C.J., dissenting), he joined the

majority in Bostock, so that case was decided 6-3 rather than 5-4 as in Obergefell. Bostock, 140 S. Ct. at

1736.

In another example of a 5-4 decision whose majority drew from both sides of the ideological

spectrum, the Court rejected criminal prosecutions for the burning of a U.S. flag. Texas v. Johnson, 491

U.S. 397 (1989).

223

570 U.S. 529 (2013).

224

558 U.S. 310 (2010). In both Holder and Citizens United, all of the conservative Justices were

in the majority, and all of the liberal Justices were in the minority. Adam Liptak, Justices, 5-4, Reject

Corporate Spending Limit, N.Y.

IMES, Jan. 21, 2010, at A1; Adam Liptak, Supreme Court Invalidates

Key Part of Voting Rights Act, N.Y. T

IMES (June 25, 2013), https://www.nytimes.com/2013/06/26/us/

supreme-court-ruling.html. In Holder, the Court blocked enforcement of Section 5 of the Voting Rights

Act, which had required preclearance of changes in voting rules in jurisdictions that had a history of

344 CONNECTICUT LAW REVIEW [Vol. 54:2

A unanimity rule also would insulate ideologically diverse decisions

from being overturned by a majority from just one side of the ideological

spectrum. For example, the right to abortion would have been much more

secure after the appointments of Justices Gorsuch, Kavanaugh, and Barrett

if the Court decided its cases unanimously.

In short, requiring consensus probably would have only a limited effect

on the likelihood that the Court would champion social reform. At the same

time, it would provide a fairer process for litigants, promote a more

deliberative and sounder decision-making process, and greatly reduce the

political maneuvering that has made for a drawn-out and highly partisan

judicial selection process.

ONCLUSION

While the Supreme Court’s norm of deciding cases by majority vote

dates back more than 75 years, close examination demonstrates that it lacks

grounding in legal principle or empirical value. As the principle of due

process recognizes, it is important not only that a court reach good decisions,

but also that it make its decisions in a neutral fashion. With unanimous

decision-making, the Supreme Court can best satisfy both goals. It would

reach better decisions and do so in an impartial way.

225

voting discrimination. 570 U.S. at 556–57. In Citizens United, the Court struck down election spending

restrictions for corporations and other outside groups. 558 U.S. at 319, 372.

Miranda v. Arizona, 384 U.S. 436 (1966), on unconstitutional police interrogation, comes close to

a 5-4 decision with all liberals in the majority. But conservative Justice Tom Clark concurred in part and

dissented in part. He preferred a totality of the circumstances approach under the Due Process Clause

rather than a blanket requirement of Miranda warnings per the privilege against self-incrimination. Id. at

503 (Clark, J., dissenting in part). See also Martin & Quinn, supra note 221, at 146 (identifying Clark as

moderately conservative).

225

As mentioned earlier, supra note 19, the arguments in favor of judicial consensus also apply to

other courts of appeal, such as federal intermediate courts of appeal and state supreme and intermediate

courts of appeal.