WHY JUSTICES DISAGREE

Abstract

Introduction: Since the court does not have the power of either the purse or sword, it must carry its own power and legitimacy as the third branch. At a time in history when the Supreme Court is accused of being polarized, or at a minimum reflects the current state of a polarized electorate, can the Supreme Court maintain its institutional legitimacy, and would a change in the way that the court hands down decisions further insure its legitimacy and continued respect from the American people and the world stage? In a 2019 paper, Masconale and Sepe propose a “rule of near-consensus for judicial review cases. Near unanimous decisions would provide ‘the people’ with a strong signal that the justices are fulfilling their epistemic mandate.” This paper examines the epistemic and pragmatic divides within the Modern Era of the Supreme Court, and seeks to discover the nature of the divides. This paper attempts to answer two questions: First, are most disagreements among the Supreme Court of an epistemic or a pragmatic nature? I will examine this issue with a review of Riggs’s 1993 longitudinal Court data, and an examination of data from more recent records, as assembled through the Washington law (Spaeth) database. A second question follows: what indications do we have that the Supreme Court has lost its legitimacy as an institution, what are the metrics for such an assumption, and would the Supreme Court be rejuvenated or re-legitimized by requiring unanimous or near unanimous rulings? The justices are the supreme readers of the Constitution, what is it about specific issues that make them dissent? Perhaps they agree on economic activity because they put the nation’s best interests first, or perhaps the Constitution is very clear about economic, judicial, and civil rights cases. But what about criminal procedure? But these same causes also appear to bring about much dissent. Of course these topics come up the most in Supreme Court so they are heavily skewed. But how do we get the justices to agree, and why do they dissent? The Supreme Court is a unique body, and, of course, holds the power of check on the president and congress, through Judicial Review. Who are they-- the supreme readers of the constitution, protectors of minorities, or just the best judges with the greatest track records? We also have to ask, how should they come to their decisions? From their experience as lawyers and judges, through a methodology, or through basic intuition? These are fundamental questions that must be answered before we can have a conversation on why justices agree and disagree. According to Masconale and Sepe, justices should base their decisions on their chosen methodology, and in the end, agree unanimously.