Reading through a recent Georgia case, I ran across a term I hadn’t heard of before — “physical precedent.” And in the course of looking into this, I learned that Georgia courts, unlike most courts, have a form of supermajority rule for when a decision becomes binding precedent.
Historically, “physical precedent” seems to have been a nearly exclusively Georgia term for a precedent in which something was done, but without a reasoned consideration of whether it should have been done, and perhaps even without any controversy by the parties about whether it should have been done. “[T]he expression ‘physical precedent’ merely indicates that a thing has been done, but not that it has been decided to have been rightly done.” Thus, for instance, a 1902 case — the earliest one I could find that uses the term — says,
It is true that in each of those cases the solicitor general was ruled and answered, and that judgment was pronounced by this court; but a reading of the facts of the cases and the opinions therein will show that the question as to the liability of the solicitor to rule was neither raised nor decided. In neither case did the solicitor demur to the rule, and the cases merely decided the priorities of the liens of the parties concerned. If there had been a demurrer in either case, the decision would doubtless have been in accord with what is decided in this case. The cases are, therefore, not binding as authority upon the question now decided, but are mere physical precedents.
A physical precedent was thus less binding on future courts than a reasoned precedent would be, though it could be influential. (Where the label comes from, by the way, I can’t say; the 1902 decision used it as if it were well-known, but I couldn’t find any earlier references.)
But in recent decades, this old definition of “physical precedent” has apparently mostly fallen into disuse, and a new definition has emerged: An opinion of a three-judge Georgia Court of Appeals panel is “physical precedent” if only two of the three judges sign on to the opinion, while the third judge concurs only in the judgment and not in the opinion. In such a situation, the majority opinion is not binding on future panels, though it can be influential on such panels and especially on trial courts. And if the third judge dissents outright, then the decision of the panel apparently must be reheard by either the entire Georgia Court of Appeals or a seven-judge panel of the court; those decisions by larger judicial bodies are indeed binding precedent even if they are supported by a bare majority vote.
So Georgia seems to be one of the few American jurisdictions that requires a supermajority on a court to reach a binding decision — if the three-judge panel splits 2-1, the case must either be reheard by a larger court (if the one judge is in the dissent) or at least will lack full precedential value (if the one judge concurs only in the judgment). Many thanks to Presiding Justice George H. Carley of the Supreme Court of Georgia for helping me figure this out.
UPDATE: William Raftery of the National Center for State Courts adds:
As for courts with supermajority rules, Louisiana has provision for its Court of Appeals similar to the one in Georgia: “Each court shall sit in panels of at least three judges selected according to rules adopted by the court…A majority of the judges sitting in a case shall concur to render judgment. However, in civil matters only, when a judgment of a district court or an administrative agency determination in a workers’ compensation claim is to be modified or reversed and one judge dissents, the case shall be reargued before a panel of at least five judges prior to rendition of judgment, and a majority shall concur to render judgment.” (Article V, §8) … The theory, as was explained to me once, was that a 2-1 Court of Appeals decision to reverse was “really” a 2-2 decision: 2 (Court of Appeals) judges to reverse, 2 judges (the dissenting CofA judge + the trial judge) to affirm.
Additionally, North Dakota’s constitution has a super-majority requirement (Article VI, §3): “A majority of the [5 member] supreme court shall be necessary to constitute a quorum or to pronounce a decision, provided that the supreme court shall not declare a legislative enactment unconstitutional unless at least four of the members of the court so decide.”
[In Nebraska], “No legislative act shall be held unconstitutional except by the concurrence of five [of 7] judges.” Ne. Const. Art. V, § 2
Several other states which at least theoretically/constitutionally sit in panels (Arizona, Utah, Virginia) have language which requires a majority of the full court to declare something unconstitutional.