A judge on a multimember appellate court can vote against the result of his or her own reasoning by deferring to a majority on a subissue on which the judge differs. When Justice White did just this in Pennsylvania v. Union Gas,' soon followed by a similarly anomalous vote by Justice Kennedy in Arizona v. Fulminante, I examined the pool of United States Supreme Court cases in which this kind of voting was possible. Out of more than one hundred fifty earlier cases where one or more of the justices might have voted in such a way, only two justices in one 1971 case had cast such votes. The votes of Justice White in Union Gas and Justice Kennedy in Fulminante were troubling, however, not because of their almost totally unprecedented nature, but because they portended forfeiture of the Supreme Court's claim-implicit in the fact that the Court issues opinions-to be composed of reasoned, and not arbitrary, decision makers. There was no tenable justification given for the anomalous votes in each case, even though the votes finally decided the rights of the parties. Even the smallest first step toward such arbitrariness as a basis for decision should be more disturbing than any particular unfortunate decision of the Court.
To be frank, when preparing my Article I had a lurking concern that I was overreacting to some minor aberrations. Even the greatest legal giants may stumble once or twice. My own research showed that the overwhelming practice of the justices on the Court has been to vote for the consequence of the individual justice's own reasoning. Imagine my surprise when Professors David Post and Steven Salop argued in the Georgetown Law Journal that a judge should always vote against his or her own view if a majority of colleagues on the court disagrees with an essential step of the judge's analysis. And consider my further surprise when Professors Lewis Kornhauser and Lawrence Sager argued in the California Law Review that courts should regularly engage in "metavotes" to determine whether individual judges on a court should do what Post and Salop say they should always do.
John M. Rogers,
"Issue Voting" by Multimember Appellate Courts: A Response to Some Radical Proposals,
49 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol49/iss4/3