September 5, 2021

by Stephen Stofka

In a 5-4 decision this week, the Supreme Court decided to let stay the Texas law against abortion that went into effect this week. The court is a democracy whose majority opinion, no matter how slim the majority, becomes the winning opinion. Despite the black robes and pretense of objectivity, the court “elects” its opinions. In 1776, America declared independence from the tyranny of one person rule yet we often stand here today subject to the rule of one person on the court. Should we change our procedure so that the court operates more like a free market?

Writing in the independent court commentary Scotusblog, Amy Howe (2021) summarized the history of the case, the unsigned majority decision and the signed objections of the four dissenting justices including the Chief Justice, John Roberts. Under the law, anyone assisting a woman terminating a pregnancy after 6 weeks can be sued by a third party in Texas civil court. Most women do not know they are pregnant until at least six weeks so this is an effective ban on most abortions. The law effectively deputizes private citizens as vigilante enforcement, paying them up to $10,000 for each successful case and absolving the state of legal responsibility.

The court’s majority opinion was largely founded on procedural grounds that there was no way to know if the person named in the suit would bring a case against an abortion provider under the new law. U.S. and Japanese courts have concrete judicial review as opposed to the abstract review of the European system. Under concrete review, courts act only on cases brought before them. The crafting of this law was designed to take advantage of that aspect of our court system.

The Federalist Society was founded in 1982 to push a libertarian ideology as a counteracting force to the perceived dominance of a liberal interpretation of the Constitution. The Society’s champions a judicial interpretation of the law “founded on the principles that the state exists to preserve freedom [and] that the separation of governmental powers is central to our Constitution” (Federalist Society, 2021). Without clear jurisdiction granted to the federal government by the Constitution, state law should be given deference. Six of the nine members of the Supreme Court are members of the Society and lean toward that libertarian interpretation of the Constitution.

Libertarians champion the dynamics of the free market because it is not a democracy ruled by a majority. There are multiple brands competing for our loyalty. In metropolitan areas, local governments do compete with each other for residents but governments generally act like the water and electric utilities they regulate as public monopolies. A government provides a public monopoly on force and on rule-making. In our Federalist system, 50 states have 50 different sets of laws, 50 separate court systems and 50 interpretations of the Federal constitution and federal law.

We already have a free market in our judicial system. Why should we let a slim majority vote in the Supreme Court contaminate that free market? The justices base their decisions on what they consider sound jurisprudence consistent with past historical principle. Legal briefs present competing opinions that are a distillation of many opinions, a winnowing process that is characteristic of a free market. In choosing between those few dominant legal interpretations, the justices try to establish a positive reasoning to a normative opinion of what is the “best” interpretation. The free market is at work until that final moment when free market principles are upended by a majority vote of one opinion to rule them all.

Let the last step in the process be one that preserves free market principles. If there is a close vote, let each justice vote on the two most dominant opinions whether they agree with those opinions or not. From those votes, let two choices emerge and each choice be assigned a 1 or 0. A roll of nine dice will decide the winning choice. Each six-sided dice will have 1 spot on three faces and no spot on three faces.  The majority rule of the dice, not human beings, would decide the final choice of the winning opinion.

This method will preserve historical precedent, an important feature of the common law foundation of American jurisprudence. In current practice, contesting and concerned parties submit merit and amicus curiae briefs that cite both past majority and dissenting opinions. Adopting this suggested method would continue to support that practice. We would place our most cherished jurisprudence before the whims of fortune, not the tyranny of one person’s vote. Let Lady Justice be truly blindfolded as each opinion is put on the scale.

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Photo by Tingey Injury Law Firm on Unsplash

Federalist Society. (2021). About us. Retrieved September 04, 2021, from https://fedsoc.org/about-us

Howe, A. (2021, September 02). Supreme court Leaves Texas abortion ban in place. Retrieved September 04, 2021, from https://www.scotusblog.com/2021/09/supreme-court-leaves-texas-abortion-ban-in-place/