5 votes, four in the plurality and one in the dissent

[Robert Sheridan]

This reminded me of how difficult it is to predict either the outcomes
or the 'moves' the Court makes in reaching a decision.  Make that
impossible.

Karl Popper, who did his bit to debunk psychiatry back in the 'Thirties,
decried it as pseudo-science because you could know all of what passed
for Freudian psychiatry that there was to know and still not be able to
state with any accuracy what someone was going to do next, other than
screw-up maybe.  So Popper came up with his criterion of falsifiability.
If you couldn't devise a test by which to falsify some proposition, then
you weren't involved in science but something else, even if it
masqueraded as science, such as psychiatry.

He was also a bear on 'ad hoc' exceptions to theories, made to keep the
rule despite the exception, as in, "Forget about that Granny Smith apple
that just fell up; the theory is still Newton's gravity, except for the
Granny Smiths which are allowed to fall up."

I know.  Law isn't science.  Yet it poses as a rational system.  No
arbitrary rule making allowed.  That would be capricious, the handmaiden
to crazy.  That's as close to a definition of 'rational' as I hope to
see in Con-law.

If law is so rational, how come I'm always so surprised when I read a
decision and see something like Scalia and Stevens voting together?  Or
Breyer and Rehnquist.  

Can't those justices keep themselves sorted out? 

-rs
sfls

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Edward A
Hartnett
Sent: Wednesday, June 30, 2004 1:06 PM
To: conlawprof-bounces at lists.ucla.edu; conlawprof at lists.ucla.edu
Subject: RE: 5 votes, four in the plurality and one in the dissent

Frank Cross wrote:

I'm pretty sure that no one is going to be able to produce a clear guide
here on whether one can combine plurality and dissenting votes. One
obvious
reason is that the Supreme Court uses outcome voting, rather than issue
voting.


There are a few  Supreme Court cases with two major issues, where a
majority each of the discrete issues voted for the appellant, but the
decision was for the appellee.  This has been an issue in precedent for
some time, without much resolution.  It's tempting to say that judges
should follow the issue voting, though this is tantamount to a lower
court
reversing the Supreme Court's outcome and disregarding the Court's
decision
to use outcome rather than issue voting.

_________

I responded:

I fear I may be missing something.  Why does the practice of outcome
voting
make you pretty sure that no one can come up with a clear guide here?

I agree (as the parenthetical in my post suggested) that this debate is
connected to the debate over outcome vs. issue voting.

But to my mind, if one believes (as I do, see 74 NYU 123) that outcome
voting is the correct practice, and that the Supreme Court's two
misadventures into issue voting should not be repeated, doesn't that
reinforce the argument that one cannot form binding precedent by
counting
votes on issues by dissenting judges.  Indeed, isn't that the thrust of
your second paragraph?

Or is your point that the debate over the propriety of counting the
views
of dissenters will persist as long as the debate over outcome vs. issue
voting persists?

___________

He replied:

Well, I basically agree here with Ed Hartnett, but think that the matter
is
more complex. No lower court case ever tracks a Supreme Court decision
precisely.  Therefore, when lower courts use SC precedent, they
typically
examine the vote on an issue.  This is uncontroversial, except when the
issue voting contradicts the outcome voting.  Frankly, I don't think
there
is an easy answer to the problem.  There is no intrinsic problem with
using
issue votes as precedent, except when they contradict outcome votes, and
even then there is a reasonable dispute over the correct treatment of
the
case.  The use of combined plurality and dissent issue votes might
depend,
I think, on whether its use in a future case would in fact be
conflicting
with the Supreme Court's outcome.



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