One Justice or Many?
Should the 9 judges of the USA Supreme Court all come to the same conclusion, or may they come to different conclusions? If they are not unanimous, are some right and some wrong?
My attention was caught by Randall Kennedy's article in the London Review of Books 21st Jan 2021; in the context of the contentious nomination by Donald Trump of Amy Coney Barrett as a Justice of the Supreme Court in the last 2 months of his term as president. Should Trump have waited? Should justice depend on which president nominates the Judge?
Kennedy titled his piece "Cynical Realism" and claimed he was such a realist. But are we all so cynical as to suppose a Republican appointed judge will automatically disagree with a Democratically elected judge? Apparently, this type of political bias is a recent phenomenon in the USA, appearing strongly only in the last 10 years. For the preceding 2 centuries it was quite common for Republican presidents to nominate left-leaning judges, and vice versa. But of course, it becomes a race to the bottom: "If you are going to be like that, I shall too".
In Britain, we have only had a Supreme Court by that name since 2009. Prior to that the law lords in the House of Lords served that function. Our court has 12 judges. And our system of nomination is different; a 'name' drifts up out of a professional body to the Justice Secretary, who passes it (if he wishes) to the Prime Minister, who passes it (if he wishes) to the Queen, who makes the appointment (if she wishes). Judges are assumed to be impartial and unbiased.
It would be naive to suppose that this way of appointing judges makes the British Supreme Court judges less inclined to bias. Of course they will be biased. But it will be harder in the British system to find an obvious label for the bias (like a political party label).
In the USA, some 36% of Supreme Court decisions are unanimous (9:0), 51% of decisions have a unanimous or preponderant decision (9:0, 8:1, 7:2). But 49% are evenly split (6:3, 5:4). That is where the problems arise. The general public are inclined to ask: "How can a decision be regarded as right when half the panel vote against it?". A split verdict cannot justifiably be called the "Right" verdict. In fact it could be called "Arbitrary"; you could as well toss a coin and move on. Such decisions produce a general feeling of dissatisfaction and disappointment; a feeling of cynical realism.
In Britain, though there are 12 judges on the Supreme Court, most cases are heard by only 5 judges, though occasionally 7 or 9. In all the dozen cases I picked at random from the last 4 years, the judgements have been unanimous. (And it may be added that in each case the judgement was to dismiss the appeal and uphold the decision of the lower court.)
Is it too simple-minded to think that there is indeed a right and a wrong answer? I think not. I believe the "right" decision is definable in terms of a sufficient number of sufficiently well trained and sufficiently deep-thinking judges? The Court should be sufficiently large and sufficiently unbiased to constitute a representative sample of such a "judiciary". Justices should know the case-law of previous decisions, and should be able to see the implications of a decision. Not just to the case in hand, but the future consequences of their decisions in terms of a heterogeneous society. Such a court should be asked to come, not to a majority, not even to a consensus, but to the "right" decision. As Quakers are enjoined to do in their Meetings for Worship for Business.
I would be inclined to lock the judges in a room (like cardinals during a papal election), and wait until they had achieved a unanimous (or at least a preponderant) decision.
(See also: Capital Justice
The Evolving European Union
The rôle of the Citizen
Racists and Racism
Nationalism: the greatest enemy to human happiness
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