If Not 11 to 1, Why 5 to 4?

Recently, the issue of non-unanimous verdicts was under discussion, with the question asked but not answered as to why Oregon and the military have chosen to accept a less than unanimous verdict as sufficient to convict in a criminal case.  In Apodaca v. Oregon (1972), the Supreme Court held otherwise for federal courts.

The point is quasi-clear that the seriousness of finding a person guilty of a crime demands unanimity (except when it doesn’t).  From its origins in the 17th Century, a jury was twelve men good and true, the word “good” meaning men of rank or valor.  Though this has evolved over time, it remains fundamental that we assume jurors to be honorable and diligent in the fulfillment of their duty.  Yet a simple majority remains insufficient to convict.

As I raise caselaw in the context of consideration of issues lately, it struck (again) me that so many decisions of our Supreme Court are 5 to 4, decided by the vote of one Kennedy person.  Granted, a jury finds facts while the Supremes hold law, but a jury decides the guilt of an individual while the Supreme decide the law of the land.  The former is important.  The latter is pervasive.  How many individuals get a vacation courtesy of the government because of the turn of one head on the Supremes?

Given that the Nine, comprising an entire branch of a tripartite government, hold such awesome power (and hold it for life), and that membership in this exclusive club presumes a certain amount of intelligence, knowledge and judgment, it struck me that the often seismic swings in the law resulting from the collective decision of the Nine, by a majority of a single vote, reduce The Law to an absurd abstraction.

When a decision is rendered by a majority of one, it means that four of these theoretically brilliant people have decided against the holding.  If they are sufficiently suited to the task, why then does their refusal to be persuaded to support this change in law count for nothing?

We require unanimity (except when we don’t) for a finding that one man is guilty, but are satisfied with a majority of one to hold one thousand men guilty of a crime by redefining the crime, or the use of evidence to prove the crime, or the method by which conviction is obtained, without a second thought.  There was a time, notably when Warren Earl Burger was Chief Justice, that the Supreme Court justices recognized that the changes to the law they were imposing on society demanded unanimity on the Court.  The changes, favoring civil rights, would have given rise to doubts of the validity and legitimacy of the Court’s decision if the Nine weren’t all behind it.  A majority of one would have undermined the decision, and perhaps ended the public’s willingness to accept the decisions of the Court as the law by which society would endure.

Not any more.  We’ve grown used to 5-4 decisions.  We’ve become inured to the split and are no longer particularly troubled by these wild swings based upon nothing more than one Kennedy’s person’s vote.  We accept them, parse them, cite them, apply them as if the Court spoke with a single voice. 

What we fail to do is recognize that four justices, those special brilliant few, have decided that the decision is wrong.  Wrong, wrong, wrong.  A foundational shift in the law is happening, and four of the guardians for life have declared that it should not happen. Crazy, no?

It’s not that there is some different split that offers a principled justification for reversal of an existing precedent, but one has to wonder whether 6 to 3, 7 to 2, maybe even a unanimous decision, would be a more reasoned basis to accept a fundamental change in the law of a nation.  It just doesn’t seem good enough that the stability of the law hinges on a single justice, no matter how brilliant or well-intended the vote may be.  The fact that four justice, co-equal to the four on the other side, are of the view that the holding should not be the law strikes me as a very good reason not to reverse precedent.  It’s not enough to fundamentally alter the rules of a nation because of a single swing vote.

And yet it is.  Even though they couldn’t convict a person of anything.