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Monday, January 16, 2006
Alito and Vote-Counting
One little point that may have slipped below the radar: When Alito was asked how he evaluates the strength of precedent, he acknowledged that the "vote-count" of the precendent is a relevant factor in assessing whether to follow it.
This is a somewhat unusual claim. Although many seem to think (I suppose reasonably) that a unanimous Court is likely entitled to more deference than a Court split 5-4, I remember Bill Eskridge once poking fun at Rehnquist for somewhere commenting that 5-4 majorities are barely entitled to any weight. There is something arguably odd about the defenders of "stare decisis" distinguishing precedents based 0n vote-counts (since reliance and uniformity are central rule of law values for this group); but it is not altogether inconsistent. It is just rare that anyone openly articulates this idea, so I thought it would be useful to comment upon it here. If you have a view about whether vote-counts should be relevant to evaluating the strength of precendent, let us know what it is and why.
Posted by Ethan Leib on January 16, 2006 at 01:56 PM in Current Affairs | Permalink
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Comments
I do not sense a strong opinion on this one way or the other, as other factors weigh more heavily, such as a Judge's integrity displayed from years on the bench.
Posted by: Bonequark | Jan 16, 2006 4:21:21 PM
It seems to me that maintaining any particular "judicial philosophy" regarding the weight of precedent based upon the vote count of the court is a mistake. The weakness of any case as precedent is better evaluated in terms of the strength of the dissent. While this may have the obvious result of giving the most weight to 9-0 decisions with no dissent, concurrences can often serve a similar role, and as Professor Leib pointed out, this is not an altogether unreasonable idea. Likewise, dissents do not only come from members of the court. Even when the court is unanimous, legal scholarship rarely is. Of course, taking this argument to its logical ends also brushes up against the very value of precedent when being weighed by the Supreme Court. That is, is precedent inherently valuable or does its value lie in the strength of the argument as affirmed by a court of very able judges? That question, however, goes far beyond the scope of this response, and this is not my blog.
Posted by: Andy Holmer | Jan 17, 2006 3:07:35 AM
Miranda was decided 5-4. Almost 40 years later, Rehnquist writes the opinion affirming that -- despite past disagreement -- Miranda is here to stay.
Roe and Bolton were 7-2 decisions. But they get no respect, no respect at all.
Sounds to me as though if Alito were to favor overruling Roe, he must too favor overruling Miranda.
Posted by: marc garber | Jan 17, 2006 5:20:47 AM
Miranda was decided 5-4. Almost 40 years later, Rehnquist writes the opinion affirming that -- despite past disagreement -- Miranda is here to stay.
Roe and Bolton were 7-2 decisions. But they get no respect, no respect at all.
Sounds to me as though if Alito were to favor overruling Roe, he must too favor overruling Miranda.
Posted by: marc garber | Jan 17, 2006 5:21:18 AM
Miranda was decided 5-4. Almost 40 years later, Rehnquist writes the opinion affirming that -- despite past disagreement -- Miranda is here to stay.
Roe and Bolton were 7-2 decisions. But they get no respect, no respect at all.
Sounds to me as though if Alito were to favor overruling Roe, he must too favor overruling Miranda.
Posted by: marc garber | Jan 17, 2006 5:22:16 AM
I agree with Bonequark. I believe the Judge clearly demonstrated his ability to remain and independent judge and emphasized the importance of precendent. I don't believe this idea of "vote-counting" will come into play.
Posted by: Louise | Jan 19, 2006 12:10:58 PM
Judge Alito showed in the hearing that he respects precedent, but is also cited examples where precedent had to be revisited--and rightly so. He will judge every case on its own merit, and not group any cases together in such a way.
Posted by: ryan | Jan 19, 2006 8:35:12 PM
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