Tuesday, January 8, 2013

Waldron on Majority Decision in Courts

The always insightful Jeremy Waldron has a new working paper (available here) on "Five to Four: Why Do Bare Majorities Rule on Courts?" Here is the abstract:
Courts, like the US Supreme Court, make important decisions about rights by voting and often the decision is determined by a bare majority. But the principle of majority-decision (MD) for courts has not been much reflected on. What justifies judges' reliance on MD? In democratic contexts, MD is usually defended either as (i) a way of reaching the objectively best decision or (ii) as a way of respecting the principle of political equality. Howerver, it is difficult to see how either of these arguments works for the judicial case. The only other argument is one of convenience, but that seems an odd basis for majoritarian authority on a court, given the momentousness of their decisions and given that the role of courts is to check popular majorities. The paper reflects on these and other matters and concludes that, at the very least, defenders of judicial authority should be more tentative in their denunciations of democratic majoritarianism.
Waldron's paper does not purport to resolve all the issues relating to majority decision-making in courts, but his discussion of the various problems and arguments is, as usual, clear, convincing, and a just a pleasure to read.

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