In my introductory post on Law and Other Things, I had questioned our Supreme Court’s institutional response to the philosophical question of when its own judgments could be overruled. Presently, in order to overrule an opinion of a certain number of judges the Chief Justice is required to constitute a larger bench. The larger bench can overrule the previous opinion even if fewer judges agree than in the previous case. Here’s an excerpt from my post:
“Assume for a moment that a bench of five judges unanimously (5-0) decides an issue in terms of Holding X. Now assume that a larger bench, say of seven judges, is constituted to consider the question of whether Holding X should be overruled. Ironically, if the seven judges decide by a fractured majority, i.e. 4-3, that Holding X should be overruled, then even though more judges had agreed in the previous case in favor of Holding X, the decision can still be overruled if four out of seven judges think so. Similarly, a 2-1 majority can overrule a unanimous two judge opinion, a 5-4 majority can overrule a unanimous seven judge opinion, and a 6-5 majority can overrule a unanimous 9 judge opinion, apparently on the strength of the fact that more judges had participated in the overruling case. Therefore, the constitution of a larger bench in such ‘overruling’ cases seems to make little sense unless the rule requires a litigant to procure a larger majority than the previous case to overrule the previous decision.”
While reading Adrian Vermeule’s illuminating paper entitled Common Law Constitutionalism and the Limits of Reason, (available here) I recalled the Condorcet Jury Theorum, which I’d like to introduce to the overruling debate. Under the theorem, as the number of minds increases to the solution of a problem, the likelihood that the answer will be correct increases: “where there is a binary choice and a right answer exists, and where average competence exceeds .5 – that is, the average member of the group is more likely than not to choose correctly”. Does this provide a satisfactory response to our courts’ present practice of increasing bench strength while overruling precedent? For one, it certainly addresses the common law’s Burkean evolutionary concerns to overruling precedent grounded in the “wisdom of the ages”. Of course, these are preliminary thoughts which I'd like to subject to larger debate.