Photo by Uyen Le; ©2007 Endeavors.
Democracy and Dissent
by Colie Hoffman
The Supreme Court rules.
How Many Judges Does It Take to Make a Supreme Court? And Other Essays on the Law and Constitution. By John V. Orth. University Press of Kansas, 134 pages, $12.95.
Say you have a serious medical problem and want to know how to treat it. You go see several doctors and get their opinions. Then you get them together in a room, they vote on your diagnosis, and the winner treats you for whichever solution won the most votes. Right?
Of course not. In reality, you’d just care about the facts; you’d want to know the truth. You’d probably familiarize yourself with each doctor’s background — her education, experience, and reputation in her field — and decide who was most likely to be right.
But modern law — especially the law as defined by the Supreme Court — doesn’t work that way. Although the law is all about facts and objectivity, in the end, opinions and votes are often what counts — not just the facts.
“Sometimes it just comes down to counting noses,” says UNC law professor John Orth,
whose layperson-friendly new book of essays, How Many Judges Does It Take to Make a Supreme Court?, addresses questions about the Supreme Court, the Constitution, and the evolution of common law.
But the law wasn’t always like that, he says. “A hundred years ago, we never would have talked about Supreme Court judges ‘voting.’ People didn’t think of it as a vote. They thought, ‘You give your opinion, and you listen to the other people’s opinions, and you come to some kind of consensus.’”
In the United States, we’re accustomed to “the opinion of the Court,” where one justice writes out the majority’s opinion, and that opinion is what holds legal ground in future cases. And there’s always a majority, because our Supreme Court has nine Justices. Otherwise, what would we do in case of a tie — especially on divisive cultural issues, such as abortion and separation of church and state?
Well, for centuries, Orth says, there were rarely ties. It may be hard for us to imagine a world without judicial deadlock and controversy, “but when common law began in medieval England, courts had only four judges,” he says. “For five hundred years, lawyers did not anticipate ties. For the first twenty years of its existence, the U.S. Supreme Court had only six Justices.”
How can that be? Didn’t people think for themselves?
Yes, Orth says. But medieval England was much more culturally homogeneous than our modern, pluralistic democracy. Especially within the legal elite, opinions just didn’t differ that much. And judges in the eighteenth-century United States weren’t that culturally diverse, either.
“There were rare cases where an issue drew a judge or two to dissent,” Orth says. “But one of the things that discouraged dissent then — and to some extent, now — is the sense that it weakens the authority of the court if the judges can’t agree on what the law is. Oliver Wendell Holmes used to say that dissent was discouraged because the other judges treated it as an insult if you acted like they made a mistake, like you thought you were smarter than they were.”
But the late eighteenth and early nineteenth centuries saw a shift in perception, he says. Americans came to value individualism more than homogeneity, which led to more disagreements — sometimes irreconcilable ones. “Today the law is secular and individualistic,” Orth says, “but it started in a religious and communal society. The law isn’t simply rules — it’s a process that evolves.”
John V. Orth is the William Rand Kenan, Jr. Professor of Law in UNC’s School of Law.
