Public Law & Legal Theory
In this Paper, I consider the question of precedential value in settings in which a case is decided by a majority of judges hearing a case but less than a majority of judges authorized to decide the case—a situation I refer to as a “minority majority.” In analyzing the question of treatment of minority majorities, the Paper makes three broad contributions to the literature. First, it disaggregates the requirements that undergird the notion that a Court opinion receive precedential effect into three categories: quorum requirements, action requirements, and voting rule requirements. The Paper’s second broad contribution is its normative analysis of the precedent question. The Paper identifies two categories of plausible responses to the problem. First, one might increase the stringency of the requirements that fall under the first two categories— that is, quorum and action requirements in order to minimize possible minority majority cases. Second, one might address the problem by varying the precedential effect of cases decided by minority majorities. Specifically, one might accord them “full” precedential effect, no precedential effect, narrow precedential effect, or limited precedential effect. The Paper argues that affording narrow and limited precedential effect may be desirable, and that affording no precedential effect on the court that issued the decision is an underexamined option. The third contribution that the Paper makes is to use the discussion of the normative question to shed light on broader issues. These include the legitimacy of courts, the relationship between legitimacy and stare decisis; the proper breadth of court opinions and holdings; and questions of institutional choice as to who should decide how these questions are resolved; and the importance of judicial minimalism.
Jonathan Nash, "The Majority that Wasn't: Stare Decisis, Majority Rule and the Mischief of Quorum Requirements," University of Chicago Public Law & Legal Theory Working Paper, No. 227 (2008).