The precedent-based voting paradox

Boston University Law Review

Volumn 90, Issue 1, 2010, Pages 183-253

  Cohen, David S ^a  

^a DREXEL UNIVERSITY   (United States)

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EID: 77950486058     PISSN: 00068047     EISSN: None     Source Type: Journal    
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References (473)

1. In this Article, I focus my analysis on the Supreme Court. However, the analysis has much broader implications as it applies to any multi-member panel of judges that has the authority to overturn precedent. In the federal system, this includes en banc panels of the courts of appeals; in state judiciaries, this includes state supreme courts as well as any lower court with this authority.
2. Winning on only one of these issues would not give your client a victory: either you will have filed within the statute of limitations but have proved no constitutional violation, or you will have missed the statute of limitations even though you have demonstrated a constitutional violation.
3. I provide a detailed explanation of voting paradoxes infra Part I.
4. 531 U.S. 98, 103 (2000). Michael Abramowicz and Maxwell Stearns argue that the Court's voting alignment in Bush v. Gore reflected a desire to avoid a voting paradox in such an important case. See Michael Abramowicz & Maxwell L. Stearns, Beyond Counting Votes: The Political Economy o/Bush v. Gore, 54 VAND. L. REV. 1849, 1854 (2001).
5. See MAXWELL L. STEARNS, CONSTITUTIONAL PROCESS: A SOCIAL CHOICE ANALYSIS OF SUPREME COURT DECISION MAKING 306 (2000);
6. Abramowicz & Stearns, supra note 4, at 1854;
7. Frank H. Easterbrook, Ways of Criticizing the Court, 95 HARV. L. REV. 802, 821 (1982);
8. Lewis A. Komhauser & Lawrence G. Sager, The One and the Many: Adjudication in Collegial Courts, 81 CAL. L. REV. 1, 1 (1993);
9. Michael I. Meyerson, The Irrational Supreme Court, 84 NEB. L. REV. 895, 901 (2006);
10. Jonathan Remy Nash, A Context-Sensitive Voting Protocol Paradigm for Multimember Courts, 56 STAN. L. REV. 75, 76-77 (2003);
11. David G. Post & Steven C Salop, Issues and Outcomes, Guidance, and Indeterminacy: A Reply to Professor John Rogers and Others, 49 VAND. L. REV. 1069, 1069 (1996) [hereinafter Post & Salop, Issues and Outcomes];
12. David Post & Steven C Salop, Rowing Against the Tidewater: A Theory of Voting by Multijudge Panels, 80 GEO. L.J. 743, 744 (1992) [hereinafter Post & Salop, Rowing Against the Tidewater];
13. Robert C. Power, Affirmative Action and Judicial Incoherence, 55 OHIO ST. L.J. 79, 137 (1994);
14. John M. Rogers, "I Vote This Way Because I'm Wrong" : The Supreme Court Justice as Epimenides,79 KY. LJ.439, 439 (1991) [hereinafter Rogers, " I Vote This Way"];
15. John M. Rogers, "Issue Voting" by Multimember Appellate Courts: A Response to Some Radical Proposals, 49 VAND. L. REV. 997, 999 (1996) [hereinafter Rogers, "Issue Voting"];
16. Maxwell L. Stearns, The Case for Including Marks v. United States in the Canon of Constitutional Law, 17 CONST. COMMENT. 321,322 (2000);
17. Maxwell L. Stearns, How Outcome Voting Promotes Principled Issue Identification: A Reply to Professor John Rogers and Others, 49 VAND. L. REV. 1045, 1048, 1050 (1996) [hereinafter Stearns, How Outcome Voting];
18. Maxwell L. Stearns, Should Justices Ever Switch Votes?: Miller v. Albright in Sociae Perspective, 7 SUP. CT. ECON. REV. 87, 89 (1999) [hereinafter Stearns, Should Justices Ever Switch Votes];
19. Maxwell L. Stearns, Standing and Social Choice: Historical Evidence, 144 U. PA. L. REV. 309, 314 (1995);
20. Maxwell L. Stearns, Standing Back from the Forest: Justiciability and Social Choice, 83 CAL. L. REV. 1309, 1338 (1995) [hereinafter Stearns, Standing Back].
21. I detail how the precedent-based voting paradox works infra Part II.
22. LEE EPSTEIN & JACK KNIGHT, THE CHOICES JUSTICES MAKE 172 (1998) (discussing the prevalence of relying on precedent in Supreme Court reasoning).
23. 524 U.S. 498 (1998).
24. 450 U.S. 662 (1981).
25. 551 U.S. 587 (2007).
26. 524 U.S. 498 (1998).
27. 450 U.S. 662 (1981).
28. E. Enters., 524 U.S. at 517 (O'Connor, J., plurality opinion).
29. Id. at 503-504 The relevant portions of the Fifth Amendment state as follows: "No person shall... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation." U.S. CONST. amend. V.
30. E. Enters., 524 U.S.at 504.
31. Id. at 504-517
32. Id. at 522.
33. Id. at 523.
34. Id. at 523-24
35. (quoting Kaiser Aetna v. United States, 444 U.S. 164, 175 (1979));
36. see also id. at 528-529 ("Our decisions, however, have left open the possibility that legislation might be unconstitutional if it imposes severe retroactive liability on a limited class of parties that could not have anticipated the liability, and the extent of that liability is substantially disproportionate to the parties' experience.").
37. Id. at 529-537 (analyzing and balancing those factors and concluding that "in the specific circumstances of this case ... the Coal Act's application to Eastern effects an unconstitutional taking"). '
38. Id. at 537 (citation omitted).
39. Id. at 538.
40. Id. at 537. Despite only addressing the issue in dicta, the plurality noted that the Court had previously "expressed concerns about using the Due Process Clause to invalidate economic legislation."
41. Id. It repeated very strong language within two cases that such analysis had been "abandon[ed],"
42. id.
43. (citing Ferguson v. Skrupa, 372 U.S. 726, 731 (1963)),
44. and that "[t]he day is gone" when the Court used this doctrine to strike down economic regulation, id.
45. (citing Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483,488 (1955)).
46. Justice Thomas also concurred, but did so while joining Justice O'Connor's opinion in its entirety. He wrote to state his view that the Ex Post Facto Clause might, contrary to settled precedent, apply to civil legislation as well as criminal. Id. at 538-539 (Thomas, J., concurring). His opinion is irrelevant for the voting paradox analysis, as he joins the plurality in its entirety.
47. Id. at 540 (Kennedy, J., concurring in the judgment and dissenting in part).
48. Id. at 541.
49. Id. at 547.
50. Id. at 547-550
51. Justice Stevens wrote a short dissenting opinion of his own (joined by Justices Souter, Ginsburg, and Breyer) stressing a different view than the plurality of the factual history of Eastern Enterprises's obligations.
52. Id. at 550-53 (Stevens, J., dissenting).
53. Like Justice Thomas's concurrence, see supra note 24, Justice Stevens's opinion is irrelevant for the voting paradox analysis.
54. Id. at 554 (Breyer, J., dissenting).
55. Id. at 566-67. Unlike the plurality, however. Justice Breyer engages in a due process analysis of the fairness of the Act.
56. I take this chart format convention, which I use repeatedly in this Article, from Meyerson, supra note 5, at 918.
57. In this chart and the similar charts that follow, the number in parenthesis includes the opinion author.
58. 450 U.S. 662 (1981).
59. Id. at 664 (Powell, J., plurality opinion).
60. H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 529, 545 (1949).
61. Hunt v. Wash. Apple Adver. Comm'n, 432 U.S. 333, 352 (1977).
62. Pike v. Brace Church, Inc., 397 U.S. 137,146 (1970).
63. Kassel, 450 U.S. at 671
64. (applying the test of Raymond Motor Transp., Inc. v. Rice, 434 U.S. 429, 441 (1978),
65. which is derived from Pike, 397 U.S. at 142).
66. Id. at 675-676
67. Id. at 670. The Court also "declined to 'accept the State's contention that the inquiry under the Commerce Clause is ended without a weighing of the asserted safety purpose against the degree of interference with interstate commerce.'"
68. Id. (quoting Raymond, 434 U.S. at 443).
69. Id. at 671-674
70. Id. at 674-675
71. Id. at 678-79. Justice Powell also discussed the statute's possible protectionist goal,
72. id. at 676-78, but did not rely on this parochialism to determine the statute's unconstitutionality.
73. See id. at 678-679
74. Id. at 680-81 (Brennan, J., concurring in the judgment) ("[T]he only relevant evidence concerns whether the lawmakers could rationally have believed that the challenged regulation would foster [their] purposes ... [not] whether in fact the regulation promotes its intended purpose---").
75. Id. at 681 n.l. He continued: "I therefore disagree with my Brother Powell when he asserts that the degree of interference with interstate commerce may in the first instance be 'weighed' against the State's safety interests."
76. Id.
77. Id. at 685.
78. Id. at 681-682
79. Id. at 681.
80. Id. at 681-682
81. id. at 687.
82. Id. at 690-91 (Rehnquist, J., dissenting);
83. id. at 692 n.4 ("[A] majority of the Court goes on record today as agreeing that courts in Commerce Clause cases do not sit to weigh safety benefits against burdens on commerce when the safety benefits are not illusory.").
84. Id. at 692 n.4 ("I do not agree with my Brother Brennan, however, that only those safety benefits somehow articulated by the legislature as the motivation for the challenged statute can be considered in supporting the state law.").
85. Id. at 701-703
86. Id. at 693.
87. See sources cited supra note 5.
88. See, e.g., STEARNS, supra note 5, at 306-07;
89. Easterbrook, supra note 5, at 13;
90. Rogers, "Issue Voting," supra note 5, at 1001 n.27,1016 n.71,1026 n.97.
91. See AMARTYA SEN, RATIONALITY AND FREEDOM 66 (2002) (posing the main issue for social choice theory as how it is "possible to arrive at cogent aggregative judgments about the society . . . given the diversity of preferences, concerns, and predicaments of the different individuals within the society").
92. See, e.g.. Maxwell L. Stearns, The Misguided Renaissance of Social Choice, 103 YALE LJ. 1219, 1257-86, 1288-1289(1994).
93. The Paradox has been described in detail in a large number of sources. For a good overview of the Paradox, as well as an analysis of the work of the Marquis de Condorcet, see generally Cheryl D. Block, Truth and Probability - Ironies in the Evolution of Social Choice Theory, 76 WASH. U. L.Q. 975 (1998).
94. With only two options, the paradox does not arise. See WILLIAM V. GEHRLEIN, CONDORCET'S PARADOX 2-4 (2006);
95. Block, supra note 60, at 985.
96. See DAVID VAN MILL, DELIBERATION, SOCIAL CHOICE AND ABSOLUTIST DEMOCRACY 21-22 (2006);
97. Block, supra note 60, at 984-989
98. See GEHRLEIN, supra note 61, at 5-7.
99. Maxwell L. Stearns, An Introduction to Social Choice, in ELGAR HANDBOOK ON PUBLIC CHOICE (forthcoming 2009) (draft copy at 4-5, on file with the Boston University Law Review) (explaining these two assumptions in detail);
100. see also Stearns, Standing Back, supra note 5, at 1343-1349 (demonstrating the increased irrationality that results when these assumptions are relaxed).
101. Taking a vote between Administrative Law and Business Organizations (which Administrative Law would win, as Student 1 and Student 3 prefer it to Business Organizations) changes nothing, as Constitutional Theory is the winner over both of them in individual head-to-head votes.
102. Saul Levmore, Parliamentary Law, Majority Decisionmaking, and the Voting Paradox, 75 VA. L. REV. 971, 989 n.55 (1989);
103. Stearns, supra note 59, at 1255.
104. In fact, limiting the number of head-to-head votes puts control into the hands of the person making the agenda, as the agenda-setter can control the outcome by choosing which votes occur in which order. For a detailed examination of this phenomenon, see generally Michael E. Levine & Charles R. Plott, Agenda Influence and Its Implications, 63 VA. L. REV. 561 (1977).
105. See Kornhauser & Sager, supra note 5, at 12 n.22 ("Almost every discussion of voting mentions, alludes to, or focuses on the Condorcet Paradox.");
106. see also GEHRLEIN, supra note 61, at 16-19. Cheryl Block notes that some scholars call it "Arrow's Paradox" or "Arrow's Impossibility Theorem" instead of "Condorcet's Paradox."
107. Block, supra note 60, at 981 & n.23.
108. See, e.g., Block, supra note 60, at 1008-1009
109. See William H. Riker, Voting and the Summation of Preferences: An Interpretive Bibliographical Review of Selected Developments During the Last Decade, 55 AM. POL. Sci. REV. 900, 901-902 (1961).
110. DUNCAN BLACK, THE THEORY OF COMMITTEES AND ELECTIONS 159-180(1958).
111. See generally KENNETH J. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES (2d ed. 1963). I have benefitted from other writers who have explained Arrow's Impossibility Theorem in very accessible ways.
112. See generally, e.g., ALFRED F. MACKAY, ARROW'S THEOREM: THE PARADOX OF SOCIAL CHOICE (1980);
113. DENNIS C MUELLER, PUBLIC CHOICE III (2003).
114. See MACKAY, supra note 72, at 7-8 ("If you are going to consult the wishes of the multitude at all, you may as well let them express whatever preferences they really have, for whatever alternatives they happen to be faced with, under no artificially imposed restraints.").
115. See id. at 8 ("It is difficult to see how the social choice could be said to reflect individual preferences or be responsive to them in any significant sense if it failed to ratify unanimous consensus.").
116. See id. at 8 ("[A]n acceptable aggregation device should be a collective choice procedure, not merely rubber stamping one-person rule.").
117. See id. at 8-9 ("[OJnIy the bare ordering of individuals' preferences is to be taken into account. [Moreover,] only a restricted class of them is to be responded to. In generating a social ranking of a given set of alternatives, only preference orderings of those alternatives (and no others) are to be taken into account.").
118. "Rational" results are defined as those that are transitive. In other words, if the group prefers A to B and B to C, it prefers A to C See id. at 103-104
119. Again, as mentioned earlier, even though I am discussing just the Supreme Court in this Article, the same holds true of appellate courts generally and, for the part of this Article discussing overturning precedent, for all appellate courts that have the power to revisit precedent.
120. See, e.g., STEARNS, supra note 5, at 84-88.
121. The other criteria are less important in this context. Judge Frank Easterbrook claims that appellate courts obviously act consistent with unanimity, nondictatorship, and independence of irrelevant alternatives. Easterbrook, supra note 5, at 824-31. Maxwell Stearns disputes Easterbrook's analysis and provides a detailed model of appellate courts (mostly the Supreme Court) with respect to these three conditions, showing that they are relaxed in various ways in some situations.
122. See Stearns, supra note 59, at 1276-83;
123. Stearns, Should Justices Ever Switch Votes, supra note 5, at 88-94. Other than some aspects of the independence of irrelevant alternatives condition discussed infra note 198 and accompanying text, these details are not important for understanding the precedent-based voting paradox.
124. See generally STEARNS, supra note 5.
125. Stearns, Should Justices Ever Switch Votes, supra note 5, at 125-127
126. Id. at 109.
127. The Supreme Court occasionally has three possible outcomes it can reach - affirm, reverse, or remand. See STEARNS, supra note 5, at 153-54;
128. Rogers, "I Vote This Way," supra note 5, at 459-461
129. Stearns Should Justices Ever Switch Votes, supra note 5, at 116 ("Implicit in the assertion of a unidimensional continuum is the premise that, if forced to choose among each of the remaining opinions, those writing or joining the opinions at the outer edge would most prefer the one closest to them and least prefer the one farthest from them.").
130. Id. at 16 n.99.
131. See ALLAN M. FELDMAN & ROBERTO SERRANO, WELFARE ECONOMICS AND SOCIAL CHOICE THEORY 263-268 (2d ed. 2006).
132. Stearns, Should Justices Ever Switch Votes, supra note 5, at 124
133. (citing Miller v. Albright, 523 U.S. 420 (1998), a case in which "the opposite issue resolutions by the O'Connor and Stevens camps produces precisely the same result, and thus asymmetrical preferences").
134. The students in this example do not have preferences about whether they get into the clinic.
135. The students would have symmetrical choices if the situation were slightly changed and in order to get into the clinic the students would have to take both trial advocacy and appellate advocacy. The choice preferences are as follows: Student 1 : Trial Advocacy, Appellate Advocacy Student 2: No Trial Advocacy, no Appellate Advocacy Student 3: No Trial Advocacy, Appellate Advocacy Student 1 and Student 2 have opposite preferences that lead to opposite results - Student 1 's preference gets the group into the clinic, whereas Student 2's preference does not.
136. Stearns uses Memoirs v. Massachusetts, 383 U.S. 413 (1966), as a case that has a plurality opinion but lacks multidimensionality.
137. See Stearns, Should Justices Ever Switch Votes, supra note 5, at 111-17. In unidimensional cases, the rule of Marks v. United States, 430 U.S. 188 (1977),
138. applies: "When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds....'" Id. at 193
139. (quoting Gregg v. Georgia, 428 U.S. 153,169 n.15 (1976)). The Marks rule makes sense in unidimensional cases because the Justices taking the extreme position would naturally prefer the middle position to the opposite extreme.
140. Stearns explains this in detail in STEARNS, supra note 5, at 124-130
141. Stearns uses Regents of the University of California v. Bakke, 438 U.S. 265 (1978), as a case that has a plurality opinion but lacks asymmetrical preferences.
142. See Stearns, Should Justices Ever Switch Votes, supra note 5, at 117-121
143. 524 U.S. 498 (1998).
144. See supra Part I.A. 93 450 U.S. 662 (1981).
145. See supra Part I.B.
146. For instance, in Eastern Enterprises, the three sets of opinions have the following three permutations, labeled A, B, and C for future reference: O'Connor: Violates Takings Clause, does not violate Due Process Clause (A) Kennedy: Does not violate Takings Clause, violates Due Process Clause (B) Breyer: Does not violate Takings Clause, does not violate Due Process Clause (C) It is possible that the true ranked preferences of each of the opinions is as follows: O'Connor: A, B, C (would rule on Due Process Clause as alternative) Kennedy: B, C, A (believes Takings Clause is not viable possibility, as opinion makes clear) Breyer: C, A, B (believes Due Process Clause is weakest argument based on history) This set of preferences would lead to the voting paradox that occurred in the case itself and would result in cycling in head-to-head contests between each alternative. However, another plausible set of preferences would not lead to cycling: O'Connor: A, B, C (would rule on Due Process Clause as alternative to reach same result) Kennedy: B, A, C (would rule on Takings Clause as alternative to reach same result) Breyer: C, A, B (believes Due Process Clause is weakest argument based on history) In this case, there is no cycling, as A wins the series of head-to-head contests (A is preferred by a majority over both B and C), and yet the voting paradox still exists (as it occurred in the case itself). Because the Justices tend to justify only the position they have taken and do not generally explain their entire set of preferences, we cannot know for certain whether cycling exists or not within a particular voting paradox.
147. Kornhauser & Sager, supra note 5, at 11-12 n.21. They recognize however that "[u]nfortunately, we cannot at this point state necessary and sufficient conditions for the doctrinal paradox generally." Id.
148. Nash, supra note 5, at 80-82. Nash first diagrams a "two- dimensional" case in which the appellant requires the presence of both issues to win; mis case presents four possible preferences for the judges: "Table Presented" Id. at 80. Using this diagram, Nash states that a "paradox will arise whenever x + y + z > w (so that outcome-based voting presents a result favorable to the appellee), yet w + y > x + z and w + x > y + z (so that the appellant prevails on both issues)." Id. at 80-81.
149. Meyerson, supra note 5, at 932-33. According to Meyerson, for a paradox (or "irrational opinion") to arise: (i) There must be at least two distinct issues; (ii) There cannot be a majority opinion; (iii) There must be a minimum of three opinions such that: a. There is at least one issue in each opinion which is resolved in favor of a different party than in the other two opinions; and b. At least two of the opinions which reach the same conclusion as to who should ultimately prevail must resolve at least two issues in favor of different parties; and (iv) For cases with only two issues, the votes of the Justices are divided in such a way that: a. The combined votes for the party who prevails in both split decisions total a majority (so that he wins the case); and b. The sums from adding the unified votes for the other party separately to each of the split decisions total a majority (so that she wins on each issue). Id.
150. See Lewis A. Kornhauser, Modeling Collégial Courts. II. Legal Doctrine, 8 J.L. ECON. & ORG. 441,453 (1992);
151. Meyerson, supra note 5, at 929-930 ("There is no cycling, even though the voting pattern resulted in an irrational decision.").
152. Komhauser, supra note 101, at 453 ("[T]he doctrinal paradox may occur even when some complete resolution of the case defeats every other complete resolution of the case in pairwise contests, and the doctrinal paradox need not occur when no such Condorcet winner exists.");
153. Meyerson, supra note 5, at 927-30 (using hypothetical to demonstrate both points and explaining that "cases with cycling need not end in an irrational result, and cases with irrational results need not contain cycling").
154. For instance, the law students who have to take either Trial Advocacy or Appellate Advocacy in order to get into the clinic could rank their preferences as follows (with A being Trial Advocacy, Appellate Advocacy; B being Trial Advocacy, no Appellate Advocacy; and C being no Trial Advocacy, Appellate Advocacy): Student 1 : A, B, C (prioritizing Trial Advocacy) Student 2: B, C, A (prioritizing taking one advocacy course over both) Student 3: C, A, B (prioritizing Appellate Advocacy) In this scenario, there is cycling because no one option wins in head-to-head battles. However, there is no voting paradox, as all three students prefer a course package that results in them getting into the clinic. Thus, the result of a vote on the outcome (whether to get into the clinic) does not produce a result inconsistent with the vote on each individual course (whether to take Trial Advocacy and whether to take Appellate Advocacy).
155. Thus, with the law student clinic preferences ranked slightly differently (with the same notations as described supra note 103 but now adding D into the mix for the choice of no Trial Advocacy, no Appellate Advocacy): Student 1 : B, D, C (prioritizing not taking Appellate Advocacy) Student 2: C, D, B (prioritizing not taking Trial Advocacy) Student 3: D, B, C (or D, C, B) (prioritizing no advocacy course but indifferent about which one to take by itself) In this scenario, by outcome voting, the students choose to get into the clinic (both Student 1 and Student 2 result in getting into the clinic). However, by issue voting, there are two votes for not taking Trial Advocacy (Student 2 and Student 3) and two votes for not taking Appellate Advocacy (Student 1 and Student 3). The result is a voting paradox. Yet, there is no cycling, because in head-to-head voting, option C (no Trial Advocacy, no Appellate Advocacy) wins.
156. Although these scholars point to these issues as flaws in the social choice model, it is unlikely that Stearns, the leading author writing about the social choice model, would disagree. Stearns acknowledges that voting paradoxes might not lead to cycling because we have no way of knowing the Justices' individual ranked preferences. Stearns, Should Justices Ever Switch Votes, supra note 5, at 125.
157. Meyerson assumes that Justices would probably prefer the opposite outcome to switching both issue positions.
158. Meyerson, supra note 5, at 929. Stearns, on the other hand, says there is no way to know whether the Justices would prefer switching the outcome or switching both positions.
159. Stearns, Should Justices Ever Switch Votes, supra note 5, at 125. Both are really saying the same thing: because Justices vote based on outcome and we have to assume their preferences beyond their stated position, some voting paradoxes mask cycling while others may not.
160. See supra text accompanying note 98.
161. For Eastern Enterprises, see discussion supra Part I.A. For Kassel, see discussion supra Part LB.
162. Stearns, Should Justices Ever Switch Votes, supra note 5, at 127 ("[W]While expanding dimensionality increases the possibility of cycling majorities, cycling is only conceivable in a narrow subset of multidimensional cases, those in which the collective resolutions of dispositive issues reveal an asymmetry such that the opposite resolutions of dispositive issues lead to the same outcome." (emphasis added));
163. see also Meyerson, supra note 5, at 930 (describing the strict requirements for a voting paradox and stating that "there must be at least two distinct issues");
164. Nash, supra note 5, at 80 ("Roughly speaking, a case that presents only one issue could not produce one result using issue-based voting and another using outcome-based voting.").
165. 551 U.S. 587 (2007).
166. Id.
167. Id. at 2559-60.
168. 392 U.S. 83 (1968).
169. Hein, 551 U.S. at 618 (Scalia, J., concurring in the judgment).
170. Flast, 392 U.S. at 83.
171. 262 U.S. 447 (1923).
172. Id. at 479-80. The Maternity Act "provide[d] for an initial appropriation andthereafter annual appropriations for a period of five years... for the purpose of cooperating with [the states] to reduce maternal and infant mortality and protect the health of mothersand infants." Id. at 479.
173. Id. at 486.
174. Id. at 487.
175. Id. at 488.
176. See, e.g., DaimlerChrylser Corp. v. Cuno, 547 U.S. 332, 333 (2006) (citing precedentto reject taxpayer standing in a dormant Commerce Clause challenge);
177. United States v. Richardson, 418 U.S. 166, 171-73 (1974) (describing the Frothingham precedent withrespect to a taxpayer Statement and Account Clause challenge).
178. 392 U.S. 83 (1968).
179. Id. at 102-03.
180. Id. at 85.
181. Id. at 85-86.
182. Id. at 101.
183. Id. at 105-06.
184. Id. at 102.
185. Id. at 103.
186. Id. at 102.
187. Id. at 103-04 (citing JAMES MADISON, MEMORIAL AND REMONSTRANCE AGAINST RELIGIOUS ASSESSMENTS (1785),
188. reprinted in 2 THE WRITINGS OF JAMES MADISON 183, 186(Gaillard Hunt ed., 1901)).
189. See, e.g., DaimlerChrysler Corp. v. Cuno, 547 U.S. 333, 333-34 (2006) (holding thatFlast does not apply to taxpayer challenge to a local law as violating the dormantCommerce Clause);
190. Valley Forge Christian Coll. v. Ams. United for Separation of Church& State, Inc., 454 U.S. 464, 470 (1982) (holding that Flast does not apply to taxpayerEstablishment Clause challenges to the federal government's distributing property throughthe Property Clause);
191. Tilton v. Richardson, 403 U.S. 672, 674 (1971) (holding that Flastdoes apply to taxpayer Establishment Clause challenge to the federal government'sspending power under the Higher Education Facilities Act of 1963).
192. Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 588-89 (2007) (Alito, J.,plurality opinion).
193. Id. at 608.
194. Id. at 603; see also id. at 604 (calling the challenge one "to a direct and unambiguouscongressional mandate").
195. Id at 605.
196. Id. (footnote omitted).
197. Id. at 605-06
198. (citing Bowen v. Kendrick, 487 U.S. 589, 619-20 (1988);
199. Valley ForgeChristian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 479(1982);
200. Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 288 (1974);
201. UnitedStates v. Richardson, 418 U.S. 166, 175 (1974)).
202. Id. at 608-09.
203. Id. at 609.
204. Id.
205. Id. at 610. The plurality feared that federal courts would be required to "superintend,at the behest of any federal taxpayer, the speeches, statements, and myriad daily activities ofthe President, his staff, and other Executive Branch officials." Id. at 589.
206. Id. at 615.
207. Justice Kennedy concurred in the plurality opinion but also wrote a separate opinion.Because he joined the plurality, nothing in his concurrence changes the vote tally on Flast'&applicability to executive branch actions or whether Flast should be overruled. The onlypart of his concurrence that is somewhat relevant is the definitive statement that Flast "iscorrect and should not be called into question." Id. at 616 (Kennedy, J., concurring).
208. Id. at 618 (Scalia, J., concurring in the judgment); see also id. at 628 (stating that"there are only two logical routes available to this Court": apply Flast broadly to allgovernment expenditures or overrule Flast).
209. Id. at 629.
210. Id. at 632.
211. Id. at 618-28.
212. Id. at 637.
213. Id. at 640-41 (Souter, J., dissenting).
214. Id. at 637-38.
215. Id. at 639-40.
216. Id. at 643.
217. Kassel v. Consol. Freightways Corp., 450 U.S. 662, 664 (1981).
218. Hein, 551 U.S. at 593 (Alito, J., plurality opinion).
219. See supra Part I.C (describing how Kassel fits in both models).
220. I stress the word "necessarily" in this sentence because it is certainly possible that aJustice could hold preferences that are linearly arranged and thus unidimensional. Forinstance, Justice Scalia could believe the following, in order of preference: Flast should beoverruled (the position Justice Scalia took), Flast should be retained and applied (thedissent's position), Flast should be retained but differentiated and limited (Justice Alito'sposition). This preference arrangement would be multidimensional because no linearrelationship exists among the ranked choices. However, Justice Scalia might instead havethe following preferences, despite the strong language in his opinion indicating howillogical he finds Justice Alito's position: Flast should be overruled (the position JusticeScalia took), Flast should be retained but differentiated and limited (Justice Alito'sposition), Flast should be retained and applied (the dissent's position). This set ofpreferences would be unidimensional because there is a linear progression from one positionto the next. The key here is that because the two issues of whether to retain Flast andwhether to apply it are independent of one another, they can result in multidimensionalpreferences.
221. Hein, 551 U.S. at 618 (Scalia, J., concurring in the judgment).
222. See, e.g., id. at 618, 628-29.
223. Justice Alito's plurality concluded that Flast was good law but that it differed fromthe case at hand. Id. at 608-09 (Alito, J., plurality opinion). Justice Scalia's concurrence inthe judgment concluded that Flast was no longer good law and that it was the same as thecase at hand. Id. at 618 (Scalia, J., concurring in the judgment). Even though both Justicesconcluded differently on the two issues, they reached the same result: no standing.
224. Demonstrating this explicitly, we can represent the various positions as follows: A: retain Flast; this case is different (Alito plurality position) B: overturn Flast, this case is the same (Scalia concurrence in judgment position) C: retain Flast; this case is the same (Souter dissent position)We do not know for sure, but a very plausible ranking of the Justices' preferences is asfollows: Alito plurality: A, B, C Scalia concurrence in judgment: B, C, A Souter dissent: C, A, B This preference ranking would result in a cycle. For more on these preference assumptions,see discussion infra notes 169-72 and accompanying text.
225. The Appendix infra details the Supreme Court's other precedent-based votingparadoxes.
226. There can certainly be other opinions, like Justice Kennedy's concurrence in Hein,that do not change how the Justice or Justices vote on the issues but rather elaborate on thereasons for their votes. See, e.g., Hein, 551 U.S. at 617-18 (Kennedy, J., concurring).
227. See supra Part I.B.
228. Described this way, the preferences would seem a natural fit for the Marks narrowest-grounds rule. See supra note 91.
229. The generalization here is stated based on the baseline rule that the set of actions isconstitutional. However, the generalization can also be about actions that areunconstitutional, in accordance with statute, against a statute, etc.
230. Steams calls this "multipeaked preferences within a unidimensional issue spectrum[that] can be translated into unipeaked preferences within a multidimensional issuespectrum." Steams, Should Justices Ever Switch Votes, supra note 5, at 116 n.99.
231. Justice Group 2 could also have preferences B, C, A (preferring full extension to noexception). If these were the preferences of Group 2, a voting paradox would still arise, butthere would be no cycling. See discussion supra note 103 and accompanying text.
232. Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 628 (2007) (Scalia, J.,concurring in the judgment).
233. See discussion supra notes 101-05 and accompanying text.
234. See Hein, 551 U.S. at 618, 628-29.
235. Nonetheless, as mentioned previously, it is entirely possible that even though JusticeScalia called the seemingly middle position illogical he would, if forced to choose, prefer itover the opposite extreme. In doing so, he would sacrifice absolute logical consistency for adoctrinal result that he prefers.
236. See supra notes 72-73 and accompanying text.
237. See text accompanying notes 78-84.
238. STEARNS, supra note 5, at 110-11.
239. This black letter definition of stare decisis is controversial in the sense that scholarsdispute whether courts actually feel bound by stare decisis. Compare, e.g., EPSTEIN &KNIGHT, supra note 7, at 163-77
240. (arguing that stare decisis "serves as a constraint on justicesacting on their personal preferences"), with JEFFREY A. SEGAL & HAROLD J. SPAETH, THESUPREME COURT AND THE ATTITUDINAL MODEL REVISITED 76-85 (2002) (arguing that staredecisis does not actually bind Justices, as "the justices have rarely acceded to those[precedents] of which they disapprove").
241. Steams provides a detailed analysis of how stare decisis reduces the possibility ofcycling because it prevents judges who adhere to it from voting for certain options that theymight otherwise consider. See STEARNS, supra note 5, at 170-97;
242. Steams, Standing Back,supra note 5, at 1356-57 ("In short, stare decisis ... can best be understood in social choiceterminology as a cycle-prevention vehicle."). He explains: "In the Supreme Court, forexample, the stare decisis doctrine, which presumptively operates as a prohibition onrejected motions, has the effect of excluding from the justices' permissible range thoseoptions that were rejected in prior binding precedents."
243. Id. at 1368.
244. In fact, Steams almostpredicts the future by, twelve years prior to Hein, using a very similar example todemonstrate the importance of stare decisis to preventing cycling. See id. at 1335-50,1368-70.
245. Steams has written in detail about the function of stare decisis over multiple cases,rather than only within one case, as I am concerned with here. Without stare decisis, all justices are free to vote on the constitutionality of the[currently-considered government action] without regard to precedent, and on whetherthe two cases should be governed by the same rule. By broadening the number ofissues in this manner, however, the Court would reveal a cycle that may prevent it fromissuing a decision in the second case. Steams, Standing Back, supra note 5, at 1356. Stearns's analysis is similar to the analysishere; however, his observations about stare decisis should not be limited to courts cycling"over time."
246. Id. When one or more Justices do not follow stare decisis in a particular case,paradoxical results rooted in cycling can appear within that single case, not just over thecourse of multiple cases.
247. Michael Meyerson provides a list of fourteen paradoxes in Supreme Court history.Meyerson, supra note 5, at 934 n.128.
248. Judge John M. Rogers provides a list of fourteen(possibly sixteen) paradoxes that he found through 1990. Rogers, "I Vote This Way," supranote 5, at 443 n.9. Cross-referencing these lists against each other and combining them withsome cases referenced by Maxwell Steams, it appears that commentators have found up totwenty voting paradox cases in the Supreme Court.
249. See generally Steams, Should JusticesEver Switch Votes, supra note 5. Given the number of appellate panels at both the state andfederal levels, the overall number of voting paradoxes in the American judicial system islikely significantly higher.
250. See supra Part IIB.
251. See generally MICHAEL J. GERHARDT, THE POWER OF PRECEDENT (2008) (describingvarious theories of precedent and studying the actual power it has in various constitutionalareas).
252. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-07 (1932) (Brandeis, J.,dissenting) (citation and footnotes omitted).
253. Agostini v. Felton, 521 U.S. 203, 235 (1997). Difficulty of correction is not the onlyreason Justices and commentators have given justifying a lessened power of stare decisis inconstitutional matters. Justice Douglas explained that a judge must adhere to theConstitution rather than precedent about the Constitution: "A judge looking at aconstitutional decision may have compulsions to revere past history and accept what wasonce written. But he remembers above all else that it is the Constitution which he swore tosupport and defend, not the gloss which his predecessors may have put on it."
254. William O. Douglas, Stare Decisis, 49 COLUM. L. REV. 735, 736 (1949).
255. Some scholars have agreed,arguing that adhering to precedent over a correct interpretation of the Constitution isactually unconstitutional. See, e.g., Emery G. Lee III, Overruling Rhetoric: The Court's New Approach to Stare Decisis in Constitutional Cases, 33 U. TOL. L. REV. 581, 584-85(2002) (providing a rundown of several scholars' opinions about the constitutionality ofadherence to incorrect precedent).
256. See Thomas R. Lee, Stare Decisis in Historical Perspective: From the Founding Erato the Rehnquist Court, 52 VAND. L. REV. 647, 703-30 (1999) (reviewing historicaltreatment of precedent and concluding that, despite Justice Brandeis's Burnet dissent,constitutional precedent was treated no differently until the twentieth century).
257. See SEGAL & SPAETH, supra note 175, at 84 (showing that sixty-six percent ofprecedents overruled between 1953 and 2000 were constitutional precedents);
258. Christopher P. Banks, The Supreme Court and Precedent: An Analysis of Natural Courts and ReversalTrends, 75 JUDICATURE 262, 263 (1992) (showing that 60.5% of overturned precedent from1789 through 1991 were constitutional, compared with 27% percent statutory).
259. Yet even within the area of constitutional law, the Court rarely overturns its ownprecedent. See GERHARDT, supra note 180, at 9-10 ("From 1789 through the end of the2004 term, the Court, in 133 cases, expressly overruled 208 [constitutional] precedents.").
260. See Id. at 12-13.
261. See supra text accompanying notes 162-63.
262. 551 U.S. 587 (2007).
263. 392 U.S. 83 (1968).
264. For the specific votes and explanations, see discussion supra Part II.A.
265. See supra note 165 and accompanying text.
266. See, e.g., Komhauser & Sager, supra note 5, at 23-24 (arguing that while no codifiedvoting protocol exists, the Court tends to favor outcome-based voting which is particularly problematic with voting paradoxes);
267. Post & Salop, Issues and Outcomes, supra note 5, at1084;
268. Post & Salop, Rowing Against the Tidewater, supra note 5, at 772.
269. Post & Salop, Rowing Against the Tidewater, supra note 5, at 744.
270. See Komhauser & Sager, supra note 5, at 58-59;
271. Post & Salop, Rowing Against theTidewater, supra note 5, at 770-72.
272. See discussion supra Part I.A
273. For the voting patterns on these issues, see chart supra Part I.A.
274. See Rogers, "Issue Voting," supra note 5, at 1002-04;
275. Steams, How Outcome Voting,supra note 5, at 1061-65.
276. See STEARNS, supra note 5, at 121-22.
277. The implications of this feature of precedent-based voting paradoxes are discussedinfra Part III.C.
278. See Post & Salop, Issues & Outcomes, supra note 5, at 1077-84 (arguing that judgesshould vote on all primary issues presented by a case).
279. On the other hand, reconsidering precedent each time would decrease the pathdependency associated with stare decisis. See Steams, Standing Back, supra note 5, at1357-59 (explaining the anomaly created with path dependency: "that a group of casespresented to the same court in different order can produce opposite legal doctrine").
280. I use the word "strategically" consistent with how Lee Epstein and Jack Knight havediscussed "strategic decision making." EPSTEIN & KNIGHT, supra note 7, at 12. They havedefined the term as follows: To put it plainly, strategic decision making is about interdependent choice: anindividual's action is, in part, a function of her expectations about the actions of others.To say that a justice acts strategically is to say that she realizes that her success orfailure depends on the preferences of other actors and the actions she expects them totake, not just on her own preferences and actions.
281. Id.
282. See supra Part II.B.
283. Someone believing in the attitudinal model of decision-making would dispute this assessment of the concurrence's vote in the hypothetical world in which Flast is not reconsidered. Under the attitudinal model of decision-making, Supreme Court Justices vote their policy preferences. So, presuming Justices Scalia and Thomas voted against taxpayer standing because that is the result they wanted in Hein, had they not been able to address Flast, they would have agreed with Justice Alito's plurality to get the result they wanted.
284. See JEFFERY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL 65 (1993) ("[The attitudinal model] holds that the Supreme Court decides disputes in light of the facts of the case vis-à-vis the ideological attitudes and values of the justices."). The social choice model relies upon an assumption of sincere ranking of preferences.
285. See discussion supra note 64 and accompanying text.
286. See Brief for the Petitioners at 45-49, Hein v. Freedom from Religion Found., Inc., 551 U.S. 587 (2007) (No. 06-157) (arguing for a narrow reading of Flast rather than overturning it);
287. Brief for Respondents at 46-47, Hein, 551 U.S. 587 (No. 06-157) (arguing against two amici's suggestions to overrule Flast).
288. See Hein, 551 U.S. at 628 (Scalia, J., concurring in the judgment) (stating that there are "only two logical routes" available to the Court: apply Flast or overrule it).
289. 492 U.S. 490, 519-20 (1989).
290. 551 U.S. 449, 456-57, 504 (2007).
291. Brief for Appellants at II, Webster, 492 U.S. 490 (No. 88-605) ("7. Should the Roe v. Wade, 410 U.S. 113 (1973), trimester approach for selecting the test by which state regulation of abortion services is reviewed be reconsidered and discarded in favor of a rational basis test?");
292. Brief for Appellee at i, Wis. Right to Life, Inc., 551 U.S. 449 (Nos. 06-969 & 06-970) ("3. Whether this Court's facial upholding of the electioneering communication prohibition in McConnell v. FEC, 540 U.S. 93 (2003), must be overturned. ...").
293. In fact, in American Trucking Ass'ns v. Smith, Justice O'Connor dropped a footnote chastising Justice Scalia for addressing the issue of stare decisis even though "the parties do not raise, and this case does not present, any question regarding the continued vitality of our dormant Commerce Clause jurisprudence
294. ." Am. Tracking Ass'ns v. Smith, 496 U.S. 167, 183 n.1 (1990).
295. Brief of the State of Indiana et al. as Amici Curiae in Support of the Petitioners at 1429, Hein, 551 U.S. 587 (No. 06-157);
296. Brief of Amicus Curiae Foundation for Moral Law, Inc., Suggesting Reversal at 14-20, Hein, 551 U.S. 587 (No. 06-157).
297. 337 U.S. 582 (1949).
298. 6 U.S. (2 Cranch) 445 (1805).
299. Brief for Petitioner at 18-20, Nat'l Mut. Ins. Co., 337 U.S. 582 (No. 29).
300. 505 U.S. 833 (1992).
301. 370 U.S. 530 (1962).
302. Brief for Respondents at 105-17, Casey, 505 U.S. 833 (Nos. 91-744 & 91-902) (arguing for overruling Roe v. Wade as an alternative ground for decision);
303. Brief for Respondents at 5, 22, Glidden Co., 370 U.S. 530 (No. 242).
304. Epstein and Knight call this the "norm of sua sponte": "the practice of disfavoring the creation of issues not raised in the record before the Court." EPSTEIN & KNIGHT, supra note 7, at 160.
305. United States v. Int'l Bus. Machs. Corp., 517 U.S. 843, 856 (1996) (Thomas, J.).
306. Am. Dredging Co. v. Miller, 510 U.S. 443, 447 n.1 (1994) (Scalia, J.).
307. In fact, the authors of the two statements previously quoted, Justice Thomas and Justice Scalia, respectively, were the Justices who voted, without being urged to do so by the parties, to overturn Flast in Hein. The fact that their previous statements about not overruling without invitation contradict their actions gives further evidence in support of my argument in this section.
308. See also STEPHANIE A. LINDQUIST & FRANK B. CROSS, MEASURING JUDICIAL ACTIVISM 64 (2009) (finding Justices Scalia and Thomas among the most activist contemporary Justices concerning precedent).
309. Easterbrook, supra note 5, at 822.
310. See, e.g., EPSTEIN & KNIGHT, supra note 7, at 165 ("As long as justices generally comply with the norm [of stare decisis], they will be free to deviate from precedent in those cases in which their personal preferences so differ from precedent that they feel compelled to change the existing law.");
311. WALTER F. MURPHY, ELEMENTS OF JUDICIAL STRATEGY 30 (1964).
312. Of course, the argument needs to be non-frivolous so as not to run into any ethical and, in federal court, Rule 11 issues.
313. See FED. R. Civ. P. 11. Also, the lawyer needs to be careful of other strategic briefing concerns, such as length, number of arguments, strength of arguments, and distractions.
314. See, e.g., Jones v. Barnes, 463 U.S. 745, 751-52 (1983) ("Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.");
315. id. at 753 ("A brief that raises every colorable issue runs the risk of burying good arguments - those that, in the words of the great advocate John W. Davis, 'go for the jugular'- in a verbal mound made up of strong and weak contentions.") (citation omitted);
316. ANTONIN SCALIA & BRYAN A. GARNER, MAKING YOUR CASE: THE ART OF PERSUADING JUDGES 22 (2008);
317. id. at 98 ("Brevity requires rathlessness in wringing out of your argument everything that doesn't substantially further your case: entire points that prove to be weak---").
318. This argument might seem to contradict the previous section which argued that Justices pick and choose when to vote to overrule precedent even when the parties have not raised the issue. The two are not inconsistent, however, because this section merely argues that lawyers can increase their chances of success, as raising the issue of overruling precedent would, at the least, remove the common objection mentioned above that the Court should not overrule without the parties' first requesting it do so.
319. 551 U.S. 701 (2007).
320. Id. at 732-35 (concluding the use of race was not narrowly tailored to the government's interest).
321. Id. at 788-89 (Kennedy, J., concurring in part and concurring in the judgment) (describing ways schools can use race to further diversity).
322. Id. at 861 (Breyer, J., dissenting).
323. See id. at 828-29 (Breyer, J., dissenting) ("Presidential administrations for the past half-century have used and supported various race-conscious measures.... And during the same time, hundreds of local school districts have adopted student assignment plans that use race-conscious criteria.").
324. The potential majority believing that Parents Involved is good law would be the Justices who voted for the outcome in Parents Involved: Chief Justice Roberts along with Justices Scalia, Kennedy, Thomas, and Alito.
325. The potential majority believing that Parents Involved required finding that the challenged use of race was unconstitutional would consist of the four Justices in the plurality of Parents Involved, who believe that race can never be used constitutionally, plus the three remaining Justices from the dissent who, even though they believe race may be used constitutionally, stated that the Parents Involved ruling threatened future uses of race. I also include Justice Sotomayor in this majority on the assumption (that I work with throughout this hypothetical) that she would vote along the same lines as Justice Souter, the Justice she replaced. In other words, this majority would be every Justice other than Justice Kennedy, whose separate concurrence in Parents Involved indicated that he believed the case outcome was consistent with future constitutional uses of race.
326. For instance, Justices Stevens, Breyer, Ginsburg, and Sotomayor might not believe, upon further reflection, that Parents Involved, and in particular a broad reading of Justice Kennedy's narrowest-grounds concurrence, requires finding the challenged use of race unconstitutional. That this possibility might be more likely than the one I have sketched in the text is irrelevant. The point is that the lawyer representing the government should understand that the precedent-based voting paradox is one more possible route to winning the case. With that understanding, she should make the argument for overruling the precedent so she increases the likelihood the case results in a paradox and thus increases the chances of winning.
327. See discussion supra notes 180-86 and accompanying text.
328. 436 U.S. 658 (1978).
329. Id. at 691.
330. See generally Richard Frankel, Regulating Privatized Government Through Section 1983, 76 U. CHI. L. REV. 1463-65 (2009) (describing the open issue in the Supreme Court, although all eleven circuit courts have ruled that respondeat superior does not apply to private entities as §1983 defendants).
331. Although the case is long-standing precedent, it has been extensively criticized. See id. at 1462-63 (citing scholars who have criticized Monell).
332. Justices Breyer, Stevens, and Ginsburg have called for the Court to "reexamine the legal soundness" of Monell. Bd. of County Comm'rs v. Brown, 520 U.S. 397, 431 (1997) (Breyer, J., dissenting).
333. Meyerson, supra note 5, at 952.
334. 551 U.S. 587 (2007).
335. See supra Part .A.
336. It is no coincidence that the first precedent-based voting paradox I found is from 1949. As described in the Article, the precedent-based voting paradox can exist only when there is a plurality opinion.
337. See supra text accompanying note 162. The number of plurality opinions from the Court has increased dramatically since the mid-1900s.
338. See Ken Kimura, Note, A Legitimacy Model for the Interpretation of Plurality Opinions, 11 CORNELL L. REV. 1593, 1593 n.3 (1992).
339. 337 U.S. 582 (1949).
340. Justice Jackson's plurality opinion, joined by Justices Black and Burton, found the act valid. Id. at 604 (Jackson, J., plurality opinion). Justice Rutledge's opinion concurring in the judgment, joined by Justice Murphy, agreed.
341. Id. at 626 (Rutledge, J., concurring in the judgment).
342. U.S. (2 Cranch) 445 ( 1805).
343. Justice Jackson's plurality opinion, joined by Justices Black and Burton, expressly refused to overrule Hepburn. Nat'l Mut., 337 U.S. at 588 (Jackson, J., plurality opinion). Chief Justice Vinson's dissenting opinion, joined by Justice Douglas, did not refer to Hepburn by name, but did reference it and conclude it should not be overruled.
344. Id. at 645-46 (Vinson, CJ., dissenting). Justice Frankfurter's dissenting opinion, joined by Justice Reed, did not specifically mention Hepburn but defended its holding extensively.
345. Id. at 651-54 (Frankfurter, J., dissenting). Justice Rutledge's opinion concurring in the judgment, joined by Justice Murphy, concluded that Hepburn should be overruled.
346. Id. at 625-26 (Rutledge, J., concurring in the judgment).
347. Justice Rutledge's opinion concurring in the judgment, joined by Justice Murphy, reasoned that Hepburn required finding Congress did not have this power. Id. at 617 (Rutledge, J., concurring in the judgment). The dissenting opinions of Chief Justice Vinson, joined by Justice Douglas, and Justice Frankfurter, joined by Justice Reed, did not mention Hepburn by name but argued that its holding required a finding that Congress did not have this power.
348. Id. at 645-46 (Vinson, C.J., dissenting);
349. id. at 651-54 (Frankfurter, J., dissenting). Only Justice Jackson's plurality opinion, joined by Justices Black and Burton, found that Hepburn still allowed Congress to enact this legislation.
350. Id. at 588 (Jackson, J., plurality opinion) ("This conclusion [to not overrule Hepburn] does not, however, determine that Congress lacks power under other provisions of the Constitution to enact this legislation.").
351. 370 U.S. 530 (1962).
352. Justices Frankfurter and White took no part in the decision of the case. Id. at 585.
353. Justice Harlan's plurality opinion, joined by Justices Brennan and Stewart, concluded that the judges could sit on Article III courts. Id. at 584-85 (Harlan, J., plurality opinion). Justice Clark's opinion concurring in the result, joined by Chief Justice Warren, concluded the same.
354. Id. at 586, 587 (Clark, J., concurring in the result).
355. 279 U.S. 438 (1929).
356. 289 U.S. 553 (1933).
357. Justice Harlan's plurality opinion, joined by Justices Brennan and Stewart, concluded that the precedent could not be narrowed. Glidden, 370 U.S. at 534 (Harlan, J., plurality opinion). Justice Douglas's dissenting opinion, joined by Justice Black, found the precedent applied directly to this case.
358. Id. at 596-97 (Douglas, J., dissenting) (applying Bakelite and Williams). Only Justice Clark's concurring opinion, joined by Chief Justice Warren, differentiated both Bakelite and Williams.
359. Id. at 586-88 (Clark, J., concurring in the result).
360. Justice Clark's opinion concurring in the result, joined by Chief Justice Warren, refused to overrule the two cases. Id. at 585 (Clark, J., concurring in the result). Justice Douglas's dissenting opinion, joined by Justice Black, concluded both cases were correct.
361. Id. at 592 (Douglas, J., dissenting).
362. To the contrary, Justice Harlan's plurality opinion, joined by Justices Brennan and Stewart, "reexamin[ed] the decisions," id. at 543 (Harlan, J., plurality opinion), and reached the opposite conclusion.
363. Id. at 552.
364. 406 U.S. 759 (1972).
365. Justice Rehnquist's plurality opinion, joined by Chief Justice Burger and Justice White, held the doctrine did not bar the suit.
366. Id. at 769-70 (Rehnquist, J., plurality opinion). Justice Douglas's separate concurrence,
367. id. at 771 (Douglas, J., concurring in the result), and Justice Powell's concurrence,
368. id. at 776 (Powell, J., concurring in the judgment), agreed.
369. 376 U.S. 398 (1964).
370. Justice Powell's concurrence concluded that Sabbatino required barring the suit here. First Nat'l, 406 U.S. at 773 (Powell, J., concurring in the judgment). Justice Brennan's dissent, joined by Justices Stewart, Marshall, and Blackmun, concluded that Sabbatino clearly applied.
371. Id. at 790 (Brennan, J., dissenting).
372. Justice Douglas's concurrence concluded that Sabbatino would require barring the suit but nonetheless allowed the suit to go forward on a different theory under National City Bank v. Republic of China, 348 U.S. 356 (1955).
373. First Nat'l, 406 U.S. at 772 (Douglas, J., concurring in the result). Only Justice Rehnquist's plurality opinion, joined by Chief Justice Burger and Justice White, distinguished Sabbatino.
374. Id at 767 (Rehnquist, J., plurality opinion).
375. Only Justice Powell's concurring opinion argued for Sabbatino to be overruled. First Nat'l, 406 U.S. at 774-75 (Powell, J., concurring in the judgment). Justice Brennan's dissent, joined by Justices Stewart, Marshall, and Blackmun, explicitly rejected overruling Sabbatino.
376. Id. at 778 (Brennan, J., dissenting). Justice Rehnquist's plurality, joined by Chief Justice Burger and Justice White, and Justice Douglas's concurrence did not explicitly reject overruling Sabbatino but both treated the case as good law.
377. See id. at 767 (Rehnquist, J., plurality opinion);
378. id. at 772 (Douglas, J., concurring in the result).
379. 439 U.S. 259 (1978).
380. Justice Powell's plurality opinion, joined by Chief Justice Burger and Justice Stewart, concluded the law was constitutional.
381. Id. at 275-76 (Powell, J., plurality opinion).
382. Justice Rehnquist concurred in the judgment for the reasons stated in his dissent in Trimble v. Gordon, 430 U.S. 762, 777 (1977) (Rehnquist, J., dissenting).
383. Lalli, 439 U.S. at 276 (Rehnquist, J., concurring in the judgment). Because Justice Rehnquist did not express any opinion on whether Trimble's majority holding requires a finding of constitutionality or not, he is not included in the vote counting here other than for the five Justice majority holding the law is constitutional. Justice Blackmun's concurrence in the judgment agreed with the result.
384. Id. at 276 (Blackmun, J., concurring in the judgment).
385. 430 U.S. 762 (1977).
386. Justice Blackmun's concurrence in the judgment argued that Trimble could not be distinguished. LaWi, 439 U.S. at 277 (Blackmun, J., concurring in the judgment). Justice Brennan's dissent, joined by Justices White, Marshall, and Stevens, concluded that the statute was inconsistent with Trimble and should thus be found unconstitutional.
387. Id. at 277-79 (Brennan, J., dissenting). Justice Powell's plurality opinion, joined by Chief Justice Burger and Justice Stewart, differentiated Trimble.
388. Id. at 266-68 (Powell, J., plurality opinion).
389. Only Justice Blackmun argued for overruling Trimble.
390. Id. at 277 (Blackmun, J., concurring in the judgment). The other Justices, minus Justice Rehnquist, implicitly reaffirmed Trimble as they applied it directly to this case.
391. See id. at 266-68 (Powell, J., plurality opinion);
392. id. at 277-79 (Brennan, J., dissenting, joined by White, Marshall, and Stevens, JJ.).
393. 448 U.S. 261 (1980).
394. Justice Stevens's plurality opinion, joined by Justices Brennan, Blackmun, and Stewart, concluded that successive awards are allowed. Id. at 286 (Stevens, J., plurality opinion). Justice White's opinion concurring in the judgment, joined by Chief Justice Burger and Justice Powell, agreed.
395. Id. at 286 (White, J., concurring in the judgment).
396. 320 U.S. 430 (1943).
397. Justice Stevens's plurality opinion, joined by Justices Brennan, Blackmun, and Stewart, concluded that Magnolia could not be distinguished. Thomas, 448 U.S. at 272 (Stevens, J., plurality opinion). Justice Rehnquist's dissent, joined by Justice Marshall, also found Magnolia to be indistinguishable.
398. Id. at 291 (Rehnquist, J., dissenting). Justice White's opinion concurring in the judgment, joined by Chief Justice Burger and Justice Powell, did not find Magnolia controlling.
399. Id. at 289-90 (White, J., concurring in the judgment).
400. Justice White's opinion concurring in the judgment, joined by Chief Justice Burger and Justice Powell, stated this explicitly, id. at 289 (White, J., concurring in the judgment), as did Justice Rehnquist's dissent, which Justice Marshall joined,
401. id. at 290 (Rehnquist, J., dissenting). Justice Stevens's plurality opinion, joined by Justices Brennan, Blackmun, and Stewart, called for Magnolia to be overruled.
402. Id. at 286 (Stevens, J., plurality opinion).
403. 492 U.S. 490 (1989).
404. Chief Justice Rehnquist's plurality on the viability-testing provision, joined by Justices White and Kennedy, found it constitutional. Id. at 520 (Rehnquist, C.J., plurality opinion).
405. Justice O'Connor's concurrence in the judgment agreed, id. at 531 (O'Connor, J., concurring in part and concurring in the judgment), as did Justice Scalia in his concurrence in the judgment,
406. id. at 537 (Scalia, J., concurring in part and concurring in the judgment).
407. 410 U.S. 113(1973).
408. Justice Scalia's opinion concurring in the judgment found that the statute conflicted with Roe and its progeny. Webster, 492 U.S. at 536 n.* (Scalia, J., concurring in part and concurring in the judgment). Justice Blackmun's dissent, joined by Justices Brennan and Marshall, concluded that upholding the statute was in "flat contradiction to Roe."
409. Id. at 541-42 (Blackmun, J., concurring in part and dissenting in part). Justice Stevens's separate dissent found that the viability-testing provision would not pass even the rational basis test of Williamson v. Lee Optical Co., 348 U.S. 483 (1955), thereby implicitly holding that the provision conflicted with the heightened scrutiny test of Roe.
410. See Webster, 492 U.S. at 56263 (Stevens, J., concurring in part and dissenting in part). Chief Justice Rehnquist's plurality, joined by Justices White and Kennedy, argued that Roe differed from this case.
411. Id. at 521 (Rehnquist, C.J., plurality opinion). Justice O'Connor's opinion concurring in the judgment also distinguished Roe.
412. Id. at 525-31 (O'Connor, J., concurring in part and concurring in the judgment).
413. Chief Justice Rehnquist's plurality, joined by Justices White and Kennedy, concluded that it left Roe's holding "undisturbed." Webster, 492 U.S. at 521 (Rehnquist, C.J., plurality opinion). Justice O'Connor's opinion concurring in the judgment refused to re-consider Roe.
414. Id. at 526 (O'Connor, J., concurring in part and concurring in the judgment) ("When the constitutional invalidity of a State's abortion statute actually rums on the constitutional validity of Roe v. Wade, there will be time enough to reexamine Roe."). Justice Blackmun's dissent, joined by Justices Brennan and Marshall, argued against overruling Roe.
415. Id. at 557-60 (Blackmun, J., concurring in part and dissenting in part). Justice Stevens's dissent stated there was "no need" to modify Roe.
416. Id. at 561 (Stevens, J., concurring in part and dissenting in part). Only Justice Scalia's opinion concurring in the judgment explicitly called for overturning Roe.
417. Id. at 532 (Scalia, J., concurring in part and concurring in the judgment).
418. 496 U.S. 167 (1990).
419. Justice O'Connor's plurality opinion, joined by Chief Justice Rehnquist and Justices White and Kennedy, concluded that the tax was constitutional. Id. at 183 (O'Connor, J., plurality opinion). Justice Scalia's opinion concurring in the judgment agreed.
420. Id. at 200-01 (Scalia, J., concurring in the judgment).
421. 483 U.S. 266 (1987).
422. Justice Scalia's opinion concurring in the judgment concluded that Scheiner, if upheld, would require a finding that the tax was unconstitutional. Smith, 496 U.S. at 204-05 (Scalia, J., concurring in the judgment). Justice Stevens's dissenting opinion, joined by Justices Brennan, Marshall, and Blackmun, agreed.
423. Id. at 211-12 (Stevens, J., dissenting). Justice O'Connor's plurality opinion, joined by Chief Justice Rehnquist and Justices White and Kennedy, held that Scheiner did not apply to this case. Smith, 496 U.S. at 183 (O'Connor, J., plurality opinion).
424. Justice O'Connor's plurality opinion, joined by Chief Justice Rehnquist and Justices White and Kennedy, refused to reconsider Scheiner.
425. Id. at 183 n.1 (O'Connor, J., plurality opinion). Justice Stevens's dissenting opinion, joined by Justices Brennan, Marshall, and Blackmun, applied Scheiner without reconsidering it.
426. Id. at 211-12 (Stevens, J., dissenting). Only Justice Scalia's opinion concurring in the judgment argued for Scheiner to be overruled.
427. Id. at 204-05 (Scalia, J., concurring in the judgment).
428. 505 U.S. 833 (1992).
429. The Court invalidated Pennsylvania's requirement that a married woman must notify her spouse before having an abortion.
430. Id. at 887-98 (O'Connor, Kennedy, Souter, JJ., joint opinion) (finding the spousal notification requirement to be a substantial obstacle that would prevent a significant number of women from obtaining an abortion). The Court also invalidated a provision of the recordkeeping and reporting requirement that required a married woman to report the reason she failed to notify her husband.
431. Id. at 901.
432. The joint opinion from Justices O'Connor, Kennedy, and Souter found Pennsylvania's provisions other than the spousal-notification requirement and the associated recordkeeping and reporting requirements constitutional. Id. at 879-87,899-901 (O'Connor, Kennedy, and Souter, JJ., joint opinion). The two concurring opinions from Chief Justice Rehnquist and Justice Scalia, both joined by each other as well as Justices White and Thomas, agreed.
433. Id. at 944 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part) (upholding all provisions, including spousal-notification);
434. id. at 981 (Scalia, J., concurring in the judgment in part and dissenting in part) ("I would uphold the Pennsylvania statute in its entirety.").
435. 410 U.S. 113(1973).
436. Justice Scalia's opinion concurring in the judgment, joined by Chief Justice Rehnquist and Justices White and Thomas, made this point entirely clear. Casey, 505 U.S. at 994 (Scalia, J., concurring in the judgment in part and dissenting in part). Justice Stevens's separate opinion concurring in part and dissenting in part reached the same conclusion about Roe's application here.
437. Id. at 917-18 (Stevens, J., concurring in part and dissenting in part) (finding provisions conflict with Roe). Justice Blackmun's separate opinion agreed.
438. Id. at 926 (Blackmun, J., concurring in part, concurring in the judgment in part, and dissenting in part). Only the joint opinion distinguished Roe and upheld the Pennsylvania provisions.
439. Id. at 879-87, 899-901 (O'Connor, Kennedy, and Souter, JJ., joint opinion).
440. The joint opinion of Justices O'Connor, Kennedy, and Souter refused to overrule Roe.
441. Id. at 854-69 (O'Connor, Kennedy, and Souter, JJ., joint opinion). Justices Stevens's and Blackmun's separate opinions also defended and applied Roe.
442. Id. at 912-14 (Stevens, J., concurring in part and dissenting in part);
443. id. at 926 (Blackmun, J., concurring in part, concurring in the judgment in part, and dissenting in part). Chief Justice Rehnquist's and Justice Scalia's separate concurring opinions, both for each other and Justices White and Thomas, argued for Roe to be overturned.
444. Id. at 944 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part);
445. id. at 979-80 (Scalia, J., concurring in the judgment in part and dissenting in part).
446. 512 U.S. 874(1994).
447. 42 U.S.C. §1973 (2006) (prohibiting voting requirements that would abridge the right to vote on account of race or color).
448. Justice Kennedy's plurality opinion, joined by Chief Justice Rehnquist and Justice O'Connor, concluded the Voting Rights Act did not support such a claim. Holder, 512 U.S. at 885 (Kennedy, J., plurality opinion). Justice Thomas's opinion concurring in the judgment, joined by Justice Scalia, agreed.
449. Id. at 891 (Thomas, J., concurring in the judgment).
450. 478 U.S. 30 (1986).
451. Justice Thomas's opinion concurring in the judgment, joined by Justice Scalia, argued that Gingles required a finding that plaintiffs could maintain a Section 2 challenge. Holder, 512 U.S. at 915-17,939 (Thomas, J., concurring in the judgment) ("In that respect, however, the districting practices we have treated as subject to challenge under the Act [in Gingles] are essentially similar to choices concerning the size of a governing authority."). Justice Blackmun's dissent, joined by Justices Stevens, Souter, and Ginsburg, argued that the outcome of the case was "inconsistent" with Gingles and other Voting Rights Act precedent.
452. Id. at 950-51 (Blackmun, J., dissenting);
453. id. at 951 n.3. Justice Kennedy's plurality opinion, joined by Chief Justice Rehnquist and Justice O'Connor, differentiated Gingles.
454. Id. at 880-81 (Kennedy, J., plurality opinion). Justice O'Connor's separate concurrence in the judgment did the same.
455. Id. at 887-88 (O'Connor, J., concurring in part and concurring in the judgment).
456. Only Justice Thomas's opinion concurring in the judgment, joined by Justice Scalia, argued for overturning Gingles.
457. Id. at 944-45 (Thomas, J., concurring in the judgment) ("In my view, our current practice should not continue. Not for another Term, not until the next case, not for another day."). Justice Kennedy's plurality opinion, joined by Chief Justice Rehnquist and Justice O'Connor, differentiated Gingles without arguing for it to be overruled.
458. Id. at 880-81 (Kennedy, J., plurality opinion). Justice O'Connor's separate concurrence in the judgment specifically rejected Justice Thomas's call to "overhaul" Voting Rights Act jurisprudence.
459. Id. at 885-86 (O'Connor, J., concurring in part and concurring in the judgment). Justice Blackmun's dissent, joined by Justices Stevens, Souter, and Ginsburg, applied Gingles.
460. Id. at 950-52 (Blackmun, J., dissenting). Justice Stevens's separate opinion, joined by Justices Blackmun, Souter, and Ginsburg, defended applying stare decisis to Gingles and other Voting Rights Act cases.
461. Id at 965-66 (Stevens, J., separate opinion).
462. 551 U.S. 449 (2007).
463. Chief Justice Roberts's opinion, joined by Justice Alito, found the ads were protected and the law unconstitutional as applied to them.
464. Id. at 457 (Roberts, C.J.). Justice Scalia's concurring opinion, joined by Justices Kennedy and Thomas, agreed.
465. Id. at 504 (Scalia, J., concurring in part and concurring in the judgment).
466. 540 U.S. 93 (2003).
467. Justice Scalia's concurring opinion, joined by Justices Kennedy and Thomas, repeatedly argued that McConnell would require reaffirming the law as applied to the ads at issue because it could not be distinguished from this case. Wis. Right to Life, 551 U.S. at 498-99, 499 n.7, 501 (Scalia, J., concurring in part and concurring in the judgment) ("[T]he McConnell regime is unworkable because of the inability of any acceptable as-applied test to validate the facial constitutionality of §203 [of the Bipartisan Campaign Reform Act of 2002] - that is, its inability to sustain proscription of the vast majority of issue ads."). Justice Souter's dissenting opinion, joined by Justices Stevens, Ginsburg, and Breyer, explicitly stated the same.
468. Id. at 525 (Souter, J., dissenting) ("[I]t is beyond all reasonable debate that the ads are constitutionally subject to regulation under McConnell."). Only Chief Justice Roberts and Justice Alito found that McConnell could be differentiated.
469. Id. at 476 (Roberts, C.J.) (stating that the ads "fall outside the scope of McConnell's holding").
470. Chief Justice Roberts and Justice Alito refused to revisit McConnell.
471. Id. at 476 (Roberts, C.J.) ("We have no occasion to revisit [McConnell] today."). Justice Souter's dissenting opinion, joined by Justices Stevens, Ginsburg, and Breyer, argued against overruling McConnell.
472. Id. at 534 (Souter, J., dissenting) ("[T]here is no justification for departing from our usual rule of stare decisis here."). Only Justices Scalia, Kennedy, and Thomas supported overruling McConnell.
473. Id. at 504 (Scalia, J., concurring in part and concurring in the judgment).