Many years ago — 1992 to be precise — Steve Salop and I wrote a quirky little piece on something we called the “voting paradox.” It’s a minor, but very strange, little phenomenon in the law. The basic idea is quite simple. Suppose a 3-judge panel is hearing an appeal. In the appeal, the defendant — let’s assume it’s a criminal defendant who was convicted under a state nuisance statute — raises 2 issues: that the statute in question is unconstitutionally vague, or, in the alternative, an unconstitutional abridgement of the freedom of speech. Two of three judges, after due consideration, believe the statute is not unconstitutionally vague. Two of three judges believe the statute is not an unconstitutional abridgement of the freedom of speech. The defendant’s appeal, however, is successful and his conviction is overturned. How can that be?
The answer is pretty simple. The three judges divide this way:
Is the statute unconstitutionally vague?
Judge A NO
Judge B NO
Judge C YES
Is the statute a violation of the First Amendment?
Judge A YES
Judge B NO
Judge C NO
Two judges (A and C) will vote to overturn the conviction, and therefore they will prevail and the conviction will be overturned, even though “the court as a whole” thinks the statute is neitherunconstitutionally vague nor a violation of the First Amendment.
It’s an interesting problem, and a pretty knotty one when you start to look closely at it. First of all, what’s the “right answer” in the case? Given this distribution of reasoning among the three judges, what’s the “correct” outcome? Should the conviction be overturned, or not? Secondly, if the conviction is indeed overturned and the judges disclose their reasoning in an opinion (or several), how the hell do we interpret the result? Does this case “hold” that the statute is not unconstitutionally vague, and that it is not a First Amendment violation? [And if so, why isn't the defendant in jail?]
Salop and I had some ideas about how to handle this problem (a number which, incidentally, I no longer think are valid . . .), but neither of us did much follow-up work on the problem after the paper came out. It turns out that the problem has spawned a little bloom of literature, and there’s now a fair bit of thinking about the problem out there (though I don’t think there’s a real consensus about how to deal with it).
I bring all this up now because over at SCOTUS, David Cohen asserts that McDonald v. City of Chicago represents an illustration of the paradox at work.
To illustrate this phenomenon, imagine explaining the result of the case in a different way. After stating the basic holding that the Second Amendment is incorporated, someone responds, “Interesting. How is it incorporated?” The answer to that question reveals the paradox.
Is it incorporated through the Due Process Clause? Well, no, it’s not, as a majority of the Justices concluded that the Due Process Clause does not incorporate the Second Amendment. The four dissenters (in two separate opinions) rejected the right as fundamental under Duncan v. Louisiana (1968). Justice Thomas, in his separate concurrence, rejected Due Process incorporation for non-procedural rights altogether. To be sure, the four plurality Justices believed that the Due Process Clause incorporated the Second Amendment, but they were in the five-four minority on this point.
Is it incorporated through the Privileges or Immunities Clause? Again, no, it’s not, as a majority of the Justices rejected that claim as well. The plurality of four refused to revisit the Slaughter-House Cases (1873) or United States v. Cruikshank (1876) (on the Privileges or Immunities question), and the four dissenters also rejected this claim. Only Justice Thomas endorsed overturning Slaughter-House and reinvigorating the Privileges or Immunities Clause as the mechanism for incorporation. However, he was in the eight-one minority on this issue.
Thus, even though, as we all now know, the Second Amendment is in fact incorporated against state and local governments, a majority of the Court rejected incorporating it through the Due Process Clause and a majority of the Court rejected incorporating it through the Privileges or Immunities Clause.
I haven’t actually read the opinions yet, so I can’t vouch for Cohen’s characterization myself. These cases have a tendency to become interpretive nightmares as courts and commentators try to parse through the meaning of the paradox, so if his characterization is correct, I predict that you Con Law types are in for a bit of a rough ride on this one.
[Thanks to Chaim Gordon for the pointer]
Anon21 says:
As to the holding, this is, as you say, a knotty problem. As to outcome (judgment) it isn’t; in your stylized example, a majority of the panel believes the conviction to be invalid, and thus there is no question that it ought to be overturned. This is precisely the situation which a concurrence in the judgment is designed to accommodate.
July 7, 2010, 9:39 amClayton says:
This isn’t really much of a paradox when you look at it. The court is attempting to decide if there was something wrong with the case under appeal, the court agrees on a whole that there was, each judge having their own reason.
Seems like attorneys probably use a little game theory to raise as many single issues as possible such that it increases the odds that two judges will think at least one thing is bad with the case and overturn it.
July 7, 2010, 9:52 amHank Morgan says:
Actually, the voting paradox applies much more dramatically to Apodaca v. Oregon, a case that Eugene has pointed out may be in doubt after McDonald.
http://volokh.com/2010/06/29/non-unanimous-criminal-juries/
In Apodaca, you had eight justices agreeing that the standard for unanimity in criminal juries should be the same for both federal and state courts. But four thought unanimity should be required, four thought it should not be, and thus the sole minority justice (on the incorporation question) got to make the decision that jury unanimity was required in federal court but not in state court.
Another classic example is Nat’l Mut. Ins. Co. v. Tidewater Transfer Co. (1949), which upheld federal court jurisdiction over suits between citizens of states and citizens of the District of Columbia. Due to a voting paradox, The Tidewater case stands for proposition that Cong. cannot give an Article III court jurisdiction over a non-Art. III case or function—even though the Tidewater case itself is an example for the opposite proposition given how it came out.
July 7, 2010, 10:04 amGo Horns! says:
If the judges can’t agree on a rationale then the lower court decision should stand. The rule of law is a rationale ruling over men. In this case it appears the men control regardless of the legal rationales.
I would like to know who would have flinched in McDonald if it came down to Chicago winning or going with 5 votes on Due Process or % votes on P&I. My guess is that Thomas would have been writing a majority opinon if Marks had come out differently.
July 7, 2010, 10:05 amalkali says:
A similar situation arose in Fergiste v. INS, 138 F.3d 14 (1st Cir. 1998). That case involved a petition for asylum based on political persecution, and the issues included (i) whether the petitioner had shown that he had been persecuted in the past and (ii) whether that gave rise to a presumption of future persecution in light of what the INS asserted were changed conditions in the petitioner’s home country.
A three-member panel of the BIA denied the petition, and broke down as follows on the issues:
“Majority”: No past persecution, hence no presumption of future persecution
“Concurring”: Past persecution, but no presumption of future persecution
“Dissenting”: Past persecution, and a presumption of future persecution
The First Circuit held that the majority of the BIA panel had found past persecution — i.e., 2 out of 3 BIA panelists, albeit not the author of the “majority” BIA opinion — and that finding gave rise to a rebuttable presumption of future persecution as a matter of law, contrary to the “concurring” BIA opinion.
The First Circuit panel was split on the form of the judgment: Two members of the panel held that remand to the BIA for a determination as to whether the presumption of future persecution had been rebutted was inappropriate, on the theory that doing so would give the INS a second bite at the apple by reason of its own error. Judge Selya, the dissenter on the First Circuit panel, would have remanded.
July 7, 2010, 10:05 amSteve says:
You could even have all three judges in favor of overturning the conviction, for three different reasons.
July 7, 2010, 10:07 amHank Morgan says:
Haha, just clicked through and noticed that your initial 1992 piece was itself based on the Tidewater paradox, rendering my comment on Tidewater superfluous.
July 7, 2010, 10:08 amC60 says:
Is a refusal to revisit the Privileges & Immunities Clause by the plurality the equivalent to rejecting incorporation by that clause?
Another fair reading it seems is that the plurality, having decided the incorporation issue via Due Process as they did, found no reason to consider the P & I Clause.
So isn’t it that the court is 4-5 against incorporation by the Due Process Clause and 1-4 against P & I Clause incorporation with 4 not needing to reach the issue?
I have not read this opinion in full, so I’m just asking.
And while I’m here, is there any substantive difference between incorporation by the Due Process Clause and incorporation by the Privileges & Immunities Clause? I understand the Slaughterhouse Cases rendered the P & I Clause a virtual dead letter; were this not the case, is there a necessarily a difference with distinction between the two.
July 7, 2010, 10:13 amtroll_dc2 says:
I used to run a couple of case services. In headnoting decisions in which judges reached the same result while disagreeing on the rationale, I would merely set out the bottom-line ruling, without any reasoning.
July 7, 2010, 10:13 amruuffles says:
David Cohen’s paper is here
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1432126
It has a ton of good examples and accompanying diagrams. One famous example is Casey.
July 7, 2010, 10:17 amAnon21 says:
Particularly as to criminal appeals, this strikes me as utterly wrongheaded. The point of building redundancy into a system in which all the actors are sworn to uphold and execute the Constitution and laws is to ensure that no person is subject to criminal punishment by reason of an arguably unconstitutional law. Indeed, as to federal law, this concern about protecting people from one type of error (convicted under unconstitutional law) dominates the concern about protecting different people (society as a whole) from a different type of error (allowing criminal to go free), by reason of the very structure of the system. The Constitution provides that should a majority of either house of Congress or the President feel that a law is unconstitutional, it does not go into effect. It then buttresses these protections with an independent judiciary. “Excusing” constitutional errors when judges can’t get together on precisely what those errors are stands the entire system on its head.
July 7, 2010, 10:17 amU.Va. Grad says:
When you have a 4-1-4 situation (like in McDonald, Rapanos, or Bakke), isn’t the “1″ usually assumed to be the controlling opinion? I recall things being explained that way in law school, though I haven’t come across a similar situation in practice (and thus haven’t had to deal with it in real life).
July 7, 2010, 10:22 amGo Horns! says:
But under the legal rationales put forth by the court, there were no constitutional errors. The statute did not abridge the freedom of speech and it was not unconstituionally vague. It is only because two men think the criminal should go free, that he is released. If one of the judges thinks that the person should be free above all else, then the judge must submit to a rationale not of his choosing. That rationale would then control in all cases that follow. The raionale would rule and not the whim of a judge.
July 7, 2010, 10:25 amruuffles says:
This works for the latter two since there’s a most narrow position that can be identified. But in McDonald, the “1″ is Thomas, which is oddly enough the broadest opinion.
July 7, 2010, 10:27 amMiguel Dickson says:
Actually, it’s not so much a problem with voting, per se, as simply the difference between two different ways of trying to understand the idea of a collective’s reasoning, a pretty abstract idea to begin with.
Take three actors, A, B, C, [or three judges on a circuit panel] and three propositions, two of which are premises (P, IF P->Q) and one of which is a conclusion (Q) [P==does a certain fact hold?; IF P->Q == if P is true, does it imply a particular result Q; Q==is Q the appropriate result?], and poll the three actors as to whether they agree or not (Y/N):
P IF P->Q Q
A Y N N
B N Y N
C Y Y Y
Each of the individual actors votes is internally consistent. (A believes the facts have happened, but disagrees that they should imply a particular result, so doesn’t think the particular result should hold; B believes the facts haven’t happened, but agrees that HAD they happened, they should imply a particular result – but they didn’t so he disagrees with that result; C believes both the fact occurred, and that it should imply a particular result, so thinks the result IS Q.)
The problem is how to decide what ‘they’ think. If you go by premise-by-premise, deciding the group opinion as you go, then 2/3 believe P, and 2/3 believe P->Q, then it’d be collectively irrational for the group to believe ~Q, but that is what a simple polling of their thoughts on result is.
The intriguing part is that it’s pretty arbitrary how you ‘solve’ the problem. You either reason backwards from the result (and disregard someone’s vote RE: particular premises) or reason forwards from the premises (and disregard someone’s vote RE: result).
There are strong arguments either way, but I personally incline to reasoning forwards, if only because I think it’s a bit more humble way to proceed, since it encourages people to take an attitude of fallibility towards their own findings. (And, moreover, seems to parallel the large-scale development of scientific paradigms.)
July 7, 2010, 10:32 amChaim Gordon says:
I thought that McDonald v. Chicago is not a “true” voting paradox case. That is, in a “true” voting paradox the result is arguably wrong because the prevailing party would lose if each issue was presented independently. Consider, for example, the vague restriction on free speech discussed in this post: The reasons to invalidate the law, presumably, have nothing to do with each other. As such, it is anomalous for the prevailing party to prevail when each of its arguments should have lost.
By contrast, in McDonald, the paradox is merely formal. The plurality and concurring opinions did not disagree as to why the prevailing party should prevail. They only disagreed as to how the Fourteenth Amendment secures the right to bear arms. The plurality opinion read that right into the Due Process Clause and the concurring opinion read that right into the Privileges or Immunities Clause. This distinction can be illustrated by considering what the result in McDonald would have been had the Court limited the “question presented” to only one of the two clauses in each of two successive cases respectively. In that case, I would suppose that the same five Justices would be forced to accept whichever technical rationale that was presented in the second case (after falling short in the first case) because the right to bear arms was meant to apply to the states. In other words, there is no logic to the proposition that the right to bear arms should be abandoned because of judicial infighting as to the proper jurisprudential construction of the Fourteenth Amendment.
July 7, 2010, 10:40 amOrenWithAnE says:
The 9CA explains it thusly in IRS v. Osbourne (my emphasis):
McDonald is therefore important for ruling that the States may not infringe the 2A. It is not important how the Court got their (P&I v SDP), it is not important why it binds the States (historical argument, text of the 14A). The ruling is the holding.
July 7, 2010, 10:44 amClayton E. Cramer says:
P or I protects the rights of “citizens of the United States”; DPC applies to “any person”. DPC would protect the right of resident aliens to own guns; P or I would not presumably go that far.
July 7, 2010, 11:01 amTom Walton says:
1.)The P/I clause applies to Citizens, whereas the Due Process Right applies to people.
2.)Five Justices Incorporated the 2nd Amend. to the states via the 14th Amend. but disagreed as to what clause.
3.)Five Justices DID NOT use the Due Process Clause to apply the 2nd Amend.
Conclusions:
a.)A MAJORITY of the Court DID NOT APPLY the 2nd Amendement to NON-Citizens when it comes to challenging a non-Federal Law.
b.) Justice Thomas’s Opinion IS the controlling opinion.
July 7, 2010, 11:04 amruuffles says:
This might be one of the few practical implications of the split. Do you see a way in future cases for Thomas to vote in favor of applying Heller and McDonald to non-Citizens?
July 7, 2010, 11:07 amSteve Salop says:
These Comments are terrific. They raise quite a few of the issues we explore in more detail in our papers. I also recommend the Kornhauser and Sager article.
July 7, 2010, 11:13 amTom Walton says:
Are you assuming he wants that result?
July 7, 2010, 11:28 amAnon R. D. says:
When pro-control types seething about the loss in McDonald dwell and dwell about the supposed “paradox” here, it’s well worth a reminder that:
1. A majority of the Court agreed that the Second Amendment is made applicable to the states through the Fourteenth Amendment.
2. A majority of the Court agreed that the original meaning of the Fourteenth Amendment indicates that it protects the right to keep and bear arms.
3. A majority of the Court agreed that the right to keep and bear arms is a fundamental right that is deeply rooted in American history and tradition.
The plurality and concurrence just disagreed on which clause in the Fourteenth should be viewed as accomplishing the incorporation.
July 7, 2010, 11:38 amSammy Finkelman says:
That would be the case if the 1 was a compromise position, and that justice agreed in part with one group of 4 and agreed in part with another group of 4 but didn’t say anything that nobody else agreed to.
Another famous 4-4-1 case occurred in 1970 when Congress, by statute, lowered the minimum voting age to 18 years. (This law was the frst extension of the 1965 Voting Rights Act . Once this was in the bill, there weren’t the votes to vote it down)
Four justices said that Congress did not have the power to do this, and 4 Justices said that Congress had the power to do this, and Justice Hugo Black said Congress could do this for elections to the House of Representatives and the Senate, but not state elections (by the way that would include elections for President) and Hugo Black’s opinion was the controlling opinion.
That left states in a situation where there were different qualifications for voting for Congress and voting for anything else, creating an immense administrative or technical problem since absolutely nobody was prepared for this.
To resolve the problem, Congress passed, and the states quickly ratified, the 26th Amendment to the Constitution, reducing the voting age for all elections to 18 years. Yet it never would have passed had Congress not have first legislated a reduction and if everyone had understood that Congress could only do this for elections to Congress based on Article I Section 4, they never would have passed such a law. The amendment to the Voting Rights Act extension never would have gotten into the bill.
This shows you how people can still get their way by passing an overbroad but partially legal law with severable provisions. The end result may create so much difficulty that even a Constitutional amendment might be passed to resolve it.
Now in reality the Constitution gave the qualifications for electing members of Congress saying both in the case of the House in the original constitution and in the 17th amendment that the qualifications for voting were the same as for the most numerous branch of the state legislature, so I would think the 4 who held there was no such power to lower the voting age by mere law were right, but I haven’t read Justice Hugo Black’s opinion.
July 7, 2010, 11:41 amLogical/Legal Conundrum « Wild Boar from the Forest says:
[...] An interesting logical and legal conundrum over at Volokh. I can’t think of a similar application in theology, but maybe someone else [...]
July 7, 2010, 12:03 pmyankee says:
I don’t think this one will become an interpretive nightmare. Thomas’s opinion, whether or not “narrower,” is much more radical, and there is no reason to believe SCOTUS will follow it in future cases. Lower courts will treat the plurality as controlling and Thomas’s opinion will mostly be ignored.
July 7, 2010, 12:04 pmfred says:
David Cohen says:
I think this is wrong. Justice Thomas said that he agreed with the plurality that the 14th incorporates the 2nd via due process. But he thought there was a better, more straightforward way to get there – Privliges and Immunities.
So I don’t think this case is a paradox case at all.
July 7, 2010, 12:11 pmNickM says:
My preferered example of a voting paradox is as follows:
Convicted criminal defendant appeals, raising 2 separate issues:
evidence was admitted in violation of his 4th Amendment rights; and
evidence was admitted in violation of his Miranda rights.
3-judge panel hears the case.
Judge A finds no violation on any grounds.
Judge B finds a 4th Amendment violation, but no Mirands/5th Amendment violation.
Judge C finds a Miranda violation, but no 4th Amendment violation.
Conviction reversed.
What should happen on retrial? What evidence is admitted and what is excluded?
BTW, for those asking about Justice Thomas and state laws treating aliens differently for firearms ownership, there is still an equal protection line of cases for aliens’ rights that would cover most, if not all, state/local gun laws.
Nick
July 7, 2010, 12:12 pmUrso says:
Thanks Oren. I’ve been looking for years for a case that says precisely that, in such a clear and straightforward manner. It’s amazing how many courts skip over what it really means to be binding precedent, and just how narrow a concept that truly is.
July 7, 2010, 12:42 pmOrenWithAnE says:
Urso, you are most welcome of course.
July 7, 2010, 12:48 pmG.R. Mead says:
I predict that we will see the P&I versus Sub DP played out over the citizen/non-citizen divide for this reason (and is a reasonable distinction to make, I think):
1) that there are privileges and immunities associated with fully joining a political community as a member (which Justice Thomas’s argument compels is a single, though federated community)
2) that there are rights distinct from those accorded full membership, which inure to a peaceable human being simply because he is a human being.
On this rationale can be framed a way to both keep the Sub DP jurisprudence AND develop a coherent P&I jurisprudence.
In this sense then Justice Thomas’s decision was the MOST conservative in regard to existing law, because it reserves judgment on the non-citizen distinction which exists in current law and was not before the Court on the facts — but which the Sub DP decision clearly begs to be applied to remove that disability.
I sense that we will see a test case very shortly, and likely deciding the issue not on citizenship but on lawful presence; though the result is unclear, under the sub DP rationale even limiting it to lawfully present aliens seems problematic.
July 7, 2010, 12:55 pmNaG says:
Methinks “fred” is correct — Justice Thomas did not reject the Due Process Clause, he merely thought there was a better route to incorporation through the P&I Clause. That does not mean that he would have voted with the dissenters had there been no P&I Clause, which is really what the paradox requires.
July 7, 2010, 1:21 pmcboldt says:
– It’s amazing how many courts skip over what it really means to be binding precedent, and just how narrow a concept that truly is. –
That excerpt from IRS v. Osbourne served for that case, but it is emphatically NOT the way the law works in fact. Other (Circuit) courts have expressly stated their rule is to apply Supreme Court dicta as binding; and in 2nd amendment cases, Supreme Court dicta has been cherry-picked and converted to decades-long standing substantive law.
See The Second Amendment and Domestic Violence Misdemeanants
Also see comments #13 and #14 in the linked thread, for cites to additional statements of the role of Supreme Court dicta in establishing settled law.
July 7, 2010, 1:38 pmEponymous Coward says:
My reaction before reading the comments was similar to the first commenter, Anon21 — this is an ‘incorrect’ result only insofar as the relevant matter to vote upon are the legal questions, and not the lower court’s holding. In Prof. Post’s hypothetical, you have a majority that the lower court erred. You don’t have consensus as to why.
For this reason, I don’t think non-lawyers would view this as a paradox. (As a lawyer,) it strikes me as a rather lawyerly exercise to parse a majority into distinct minorities. Non-lawyers would say, “look, 2 out of three judges thought the guy was wrongly convicted! Where’s the paradox?”
In voting theory, the manufacturing of different outcomes by taking advantage of such paradoxes is generally perceived as a defect in voting systems.
Consider an elected official. A third of the electorate supports him. Another third think he’s too pro-gun, and wants to vote him out; the final third thinks he’s too pro-labor, and wants to vote him out. He’ll likely fail a straight-up election. But if you present 2 separate questions, (1) “Should we vote out candidate for being too pro-gun?” and then subsequently, “Should we vote out candidate for being too pro-labor?” — he’ll be re-elected. With a 33% approval rating. But the electorate “as a whole” thinks he’s neither too pro-labor nor too pro-gun!
The paradox is resolved when you decide whether the macro question or the micro question is the right level of inquiry. In an election, we normally view the macro question as the right level. If we want micro-level decisions, we have propositions and the like. In judicial decisions, I suspect lawyers focus on the micro questions, whereas I imagine the general public is far more interested in the macro questions.
July 7, 2010, 1:51 pmOrenWithAnE says:
Yup. The gulf between theory and practice on the matter is immense.
July 7, 2010, 2:02 pmDilan Esper says:
Justice Thomas’s Opinion IS the controlling opinion.
No, it isn’t. But even if it were, this condition would only last until the next P&I case came up and it was rejected 8-1 by the Court.
July 7, 2010, 2:04 pmchris myco says:
Justince Thomas is the controlling opinion, because it is narrower. He clearly not only rejects due process, but he states in a footnote that he is reserving judgement as to whether the 2nd amendment applied to non-citizens.
It is only a broader opinion in theory as to the question of unenumerated rights which is only raises himself. But as to gun control, his opinion must control because he states clearly he is not including non citizens.
Therefore as it stand right now, the ruling does not apply to non citizens owning guns, because justice thomas specifally said he was not applying it to them at this time, and as such his opinion has to control.
July 7, 2010, 3:05 pmDilan Esper says:
You guys are really misusing the Marks “narrower” rule.
The Marks rule applies in the following situation:
Plurality announces a broad rule. Concurrence says “no, it shouldn’t be that broad– I agree with the result in this case, but would not extend it any further”. In that situation, concurrence is controlling opinion.
It has no application to concurrence that says “I would also announce a broad rule, but I would do it using a completely different rationale that would create a brand new, expansive doctrine that this Court has previously declined to recognize.”
It would not make any sense to recognize as the “controlling opinion” an opinion that takes a position that is going to be rejected 8-1 in the next case.
July 7, 2010, 3:30 pmRepeal 16-17 says:
In addition to what Dilan Esper said, I find it hard to believe that an opinion that called for multiple overrulings of precedent would be the “narrower” opinion than an opinion that agrees with the holding and didn’t call for any such overruling.
July 7, 2010, 3:57 pmchris myco says:
it this case it would be because the plurality says that non-citizen would be covered as a result of due process.
Justice thomas our clearly said he is not considering non-citizen at this time. This has to be the narrower interpretation.
I just don’t see anyway, a non citizen could claim they have the right to bear arms in a state, based upon Justice Thomas’s opinion.
I do agree under most circumstances his opinion would not be the narrower ground, but in this case because of the wording of P/I and his footnote, and entire class of people are not including in his opinion.
July 7, 2010, 4:27 pmCanton says:
[Eponymous Coward says: "...Non-lawyers would say, “look, 2 out of three judges thought the guy was wrongly convicted ! Where’s the paradox ? ” ]
No paradox, just normal absurdity of bureaucratic systems.
Even more basic is the quaint requirement for criminal conviction with evidence beyond-a-reasonable-doubt.
Judges formally disagreeing on the validity of the very law upon which a specific conviction was issued — is overwhelming evidence of genuine ‘reasonable-doubt’ that a crime was committed at all.
July 7, 2010, 4:36 pmThe defendant {should be} justly determined not-guilty.
OrenWithAnE says:
Despite the repeated admonition of the courts that the weight of a decision lies only in the thing decided, not in the mechanism by which is was decided.
July 7, 2010, 4:44 pmElliot says:
According to Marks v. United States, 430 U.S. 188, 193 (1977),”When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.”
July 7, 2010, 5:23 pmDilan Esper says:
Chris:
See my earlier statement. If Thomas had issued a narrow concurrence that said: “The majority is correct that there is a right to keep and bear arms that extends to state goverments, but I see no reason to rule as to whether it extends to noncitizens at this time” and hadn’t said anything about P/I, then Marks would apply.
But Marks doesn’t apply to an opinion that would overturn a boatload of precedent and create a brand new doctrine that the other 8 members of the Court all reject and will not apply in any future case.
That’s a complete misuse of Marks.
July 7, 2010, 5:32 pmyankee says:
I don’t think either opinion is really “narrower,” because the SDP and PorI issues are orthogonal. But in terms of which one is controlling, it’s more reasonable to take the plurality applying existing doctrine over the single Justice who wants to apply a completely new theory and call multiple lines of precedent into question.
July 7, 2010, 5:56 pmDuffy Pratt says:
Paradox? This is a paradox in the same sense that rain on your wedding day is ironic.
July 7, 2010, 6:13 pmKen Blanchard says:
There are two reasons why I might be bound by something that another says or by what he decides. One is that I find his reasoning compelling, as frequently happens in philosophy or the sciences. Another is that I find his authority is compelling, which may happen when I see a policeman in the rear view mirror.
The legal significance of a Court decision is entirely a consequence of the authority of that court, not the persuasive of the court’s reasoning. Accordingly, one can get a majority for a given decision without a majority in favor of a single reason or set of reasons. I see then no paradox here, anymore than there is when members of Congress vote the same way for different or even contradictory reasons. What counts is how they voted.
Obviously the reasoning of individual judges, especially in the case of SCOTUS, is chiefly important in so far as it provides a clue as to how the court will decide future cases. Where a majority fails to emerge behind a certain rationale, lower courts will have to guess what SCOTUS will do based on something other than those reasons. But they probably have to do that anyway, since most courts are at least as likely to bend their stated reasoning to fit a decision they favor for unstated reasons, than not.
July 7, 2010, 11:47 pmLitigator London says:
There is an English aphorism which is relevant:
“A Judge at first instance should be quick, rude and right. That is not to say that the Court of Appeals should be slow, courteous and wrong, because that privilege is reserved to the House of Lords.”
July 8, 2010, 2:47 amvassil_petrov says:
In Bulgaria this paradox is impossible for although a judge is allowed to dissent from a decision there must always a single opinion by a majority of the judge on the panel. And if the (two in this case) judges cannot agree, the senior one of them gets to write the decision, and the junior just shuts up.
July 8, 2010, 6:13 amAmusingly, I vaguely remember reading in the past about the system they have in tzarist Russsia for dissent and opinion writing in criminal Schoffen type trials. There where 9 lay persons and 3 professional judges on the panel and very elaborate order of voting and writing opinion (motifs). Thus is 7 think the defendant must be aqcuited because the statute of limitation had run out, 3 because he had been incompetent and 2 because he didn’t do it – the opinion would have stated that he didn’t do it, with no dissents allowed incriminating the defendant!
More on the Voting Paradox in McDonald | Snowflakes in Hell says:
[...] By David Post over at the Volokh Conspiracy. The comments are all very interesting as well. [...]
July 8, 2010, 10:44 amDoc Daddeo says:
Wow. From an outsider Boolean logic point of view, this one looks pretty simple. It’s a matter of AND vs OR. The problem is even stated with an OR: “… or, in the alternative …”. If you OR the deciions in question one with those if question two, you get a 2:1 “yes” result. On the other hand, if only judge 3 voted yes or whatever, then you’d get 2:1 “no”.
July 8, 2010, 11:03 amDavid S. Cohen says:
Interesting discussion here about the piece I wrote. Two responses to particular points:
One, to fred, who says that Justice Thomas did not vote against the Due Process Clause incorporation and may in fact agree. Thomas rejects this argument very clearly in the second paragraph of his opinion: “I agree with [the plurality's] description of the right. But I cannot agree that it is enforceable against the States through a clause that speaks only to ‘process.’” That’s a pretty clear rejection to me.
As to those who say that the rule of Marks can apply here, the problem is that Marks only applies when one opinion, the narrower one, is logically entailed by the broader opinion. In such a case, the narrower one prevails, as it is implicitly agreed to by a majority of the Court. I say more about it here.
July 8, 2010, 11:17 amDavid S. Cohen says:
As a follow-up to Justice Thomas’ position on the Due Process Clause, I also draw your attention to his more in depth discussion on pages 7 through 9 of his concurrence, where he calls Due Process incorporation a “legal fiction” and one that he “cannot accept.”
July 8, 2010, 12:00 pmctdonath says:
Insofar as there is a paradox (finding one seems problematic in the above anecdotes), methinks the prevailing rule should be that liberty/freedom prevail – a la “innocent until proven guilty” and “better the guilty go free than the innocent be punished”.
July 9, 2010, 2:21 pm