Tuesday, December 07, 2010

Prop 8 and the Issue/Outcome Voting Problem

By Mike Dorf

I haven't yet finished watching the video of the Ninth Circuit Prop 8 oral argument.  (In fact I've just started.)  I may blog about one or more tidbits in it later in the week.  For now, I want to use the case to explore the problem of issue voting versus outcome voting.  This is a problem that is almost always potentially present for a multi-judge court addressing multiple issues, so there's nothing really special about Perry v. Schwarzenegger here, but the case does present a nice vehicle for introducing readers to the problem.

On appeal, Perry  presents multiple issues and sub-issues but for our purposes we can simplify it as follows:

1) Is there an Article III case or controversy on appeal such that the court's exercise of jurisdiction is consistent with the Constitution?

2) On the merits, should the district court's decision invalidating Prop 8 be reversed?

In order for the court to reverse the district court ruling (i.e., in order for Prop 8 to be validly enforceable), the answer to both questions must be "yes."  Among the complexities I do not address here is whether a decision that there is no appellate standing would entail that there was no case or controversy in the trial court, in which case the Ninth Circuit might have to say that the district court never should have entertained the case, and dismiss for that reason.  But I'll put that aside and assume that issue 1 is simply a question of appellate jurisdiction.

There are three judges: Reinhardt, Hawkins, and Smith.  Let's suppose they vote as follows:

Reinhardt: 1) Yes; 2) No

Hawkins:  1) No; 2) Yes

Smith:  1) Yes; 2) Yes

What is the bottom line here? If we engage in what the literature calls "outcome" voting, whereby we add up the bottom-line votes of each judge, we have two votes to affirm (Reinhardt and Hawkins), and so the district court judgment is affirmed.  But if we aggregate the judges' votes issue-by-issue, we get the opposite result.  The judges say 2-1 that there is appellate jurisdiction, and they also say 2-1 that the district court got the merits wrong.

Issue voting feels like the right way to go here.  One way to think about what makes outcome voting so peculiar is to ask what would happen in subsequent cases in which the appellate standing issue and the merits issue are not presented together.  Would Perry stand for the bottom line reached on each issue?  Or would the votes on those issues simply be dicta because--if we are using issue voting rather than outcome voting--they did not play a necessary role in supporting the result?

Note that if courts were really committed to outcome voting, then in this example Judge Hawkins wouldn't even register a view on question 2.  Having found no jurisdiction, it would be unnecessary for him to address the merits.

What is the right answer to the aggregation question?  Perhaps surprisingly, the issue is not exactly resolved.  Where, as in this particular example, one has a jurisdictional issue and then a merits issue, courts typically engage in issue voting.  Thus a judge who thinks there is no jurisdiction but is outvoted on that question, then gets to register a vote on the merits.  But where a party needs to win on two separate merits issues in order to win the case--as is often true of parties challenging lower court rulings that may be defended on alternate grounds--the usual convention is in favor of outcome voting rather than issue voting, even though that leads to paradoxes.

Here's another example using two merits issues.  Suppose that at D's murder trial he moves to suppress a bloody knife on the ground that it was the product of an unlawful search and he also moves to suppress a confession on the ground that he did not properly receive Miranda warnings.  The trial judge denies both motions, the evidence is admitted, and D is convicted.  He appeals to a panel consisting of Judges Tom, Dick and Harry.  They vote as follows:

Tom:  Knife admissible; Confession inadmissible (and not harmless error)
Dick: Knife inadmissible (and not harmless error); Confession admissible
Harry: Knife admissible; Confession admissible

Here two judges have voted to reverse and so outcome voting means the conviction is reversed.  But the ruling is 2-1 in favor of admitting the knife and also 2-1 in favor of admitting the confession.  In this instance, at least to me, outcome voting seems like the right result, although that raises the same problems that it does in Perry.  For example, what happens on remand for a new trial?  When D again moves to suppress the knife and the confession, is the district judge free to admit one or the other but not both (because admitting just the knife or just the confession will not produce a reversal, but admitting both will--assuming a conviction results)?  How should he choose?

And what exactly is the difference between this case and the example above based on Perry?  I don't think the fact that the knife/confession case is a criminal matter explains the different intuition.  I have the same intuition if a civil case involved challenges to the admissibility of two pieces of evidence in this way.  The fact that one of the issues in Perry is jurisdictional does some work, but there too, one shouldn't get hung up on labels.  Often the question of whether some issue even is jurisdictional or not can be difficult.

I find these puzzles fascinating and wonder why they so rarely materialize.  I strongly suspect it's because appellate judges are deeply pragmatic.  They typically work together to generate coherent outcomes as a group, even when they disagree about how each judge would get to the bottom line if deciding cases as an individual.

Finally, I want to acknowledge that I haven't said anything especially original here.  The leading paper is by Lewis Kornhauser and Larry Sager, Unpacking the Court, in the Yale Law Journal in 1986.  A somewhat more recent Philosophy & Public Affairs paper by Christian List and Philip Pettit succinctly discusses some of these issues.


Scott said...

Isn't the reason for the result in the jurisdiction/merits cases that, using outcome voting, the court would not have a majority for any position? In your hypothetical Prop 8 resolution, for instance, it would be one vote to affirm, one vote to dismiss the appeal, and one vote to reverse. So issue voting is the only way to produce a judgment. (I wonder whether this relates to your pragmatism point.)

Michael C. Dorf said...

Scott raises a nice point, although in practice the way it's handled will vary. Sometimes a judge will actually re-vote contrary to his original outcome vote position to create a majority for an outcome.

David's (excellent) essay raises for me an important question about how finely to slice "issues" versus "rationales." It's true that in McDonald there is no majority for the proposition that the 2nd Am is incorporated under either the DP or PorI clause, but, as he notes, there is a majority for the proposition that the 2nd Am is incorporated somehow.

David also says that McDonald shows the importance for lawyers of raising additional issues to find a way to add on judges on multi-judge courts. I'm dubious. I think that if McDonald had been argued strictly as a DP case, Justice Thomas still would have sided with the plaintiffs, writing a separate concurrence to say that he's only joining because neither party has asked the Court to overrule incorporation based on DP. I agree with David, however, that Thomas's vote might have been in play in Gonzales v. Carhart based on the federalism argument--but that's because his federalism druthers may be stronger than his abortion druthers. In short, I'd like to see whether outcome voting makes much of a difference in how Justices actually vote in ideologically charged cases; based on what we know about the substantial role of ideology from the empirical literature, I'd be surprised if it was more than a very small effect.

AF said...

I think you're conflating two issues, or at least not making the distinction between them as clear as it might be.

The first issue is what is the disposition of the appeal. On that question, as far as I know, there is only one option: outcome voting. A majority of the panel has to vote either to affirm, reverse, to vacate and remand, or to dismiss the appeal. While it is true that judges who are outvoted on a jurisdictional issue may proceed to vote differently on the merits, that is not because they are engaged in "issue voting." It is because dismissing an appeal for lack of jurisdiction is a different *disposition* than affirming the judgment of the lower court on the merits -- and again, a majority of the panel must agree on the disposition of the case or the case is not decided at all.

The second issue is the precedential effect of the decision. That is primarily a function of what the panel has to say about the issues in the case. But unlike the disposition of the case, there is no *requirement* that a majority of the panel to agree on the issues. They may decide the appeal without issuing a majority opinion on any of the issues, though of course, doing so is unhelpful to lower courts.

Applying this framework to the Prop 8 case, the three hypothetical votes you propose would lead to the case being reversed on the merits, not because the court was engaged in "issue voting" but because reversal is the only disposition on which two judges agree. Judge Reinhardt would affirm the judgment; Judge Smith would reverse it; and Judge Hawkins would reverse it as well, even though he would have preferred to dismiss the appeal for lack of jurisdiction were there two votes to do so.

Of course, it would not escape the notice of either Judge Reinhardt or Judge Hawkins that both of them would prefer to let the decision below stand. One or the other of them (most likely Reinhardt) could choose to change his vote on the disposition of the case in order to reach that result. Indeed, he could do so even while writing a concurrence stating that in fact, he does not agree with it. But that is a choice the judges would have to make, and it is still a vote on the outcome.

Of course, this is a very narrow point. Judges frequently do allow their votes on the disposition to be driven by their votes on the issues, and this is tantamount to what you call issue voting. But I think it is helpful to be clear -- or maybe it was just unclear to me -- that the difficult issues you raise are relevant to the choices to be made by the judges, not to an outsider's understanding of how the appeal was disposed. The latter question is always decided by the "outcome votes" of the judges.

Michael C. Dorf said...

AF: What you say is mostly true, but I think it understates the potential scope of the problem (at least in theory). If the appeals court uses outcome voting in my knife/confession example, the trial judge faces a genuine dilemma in deciding how to rule on the exclusion motions on remand. Your tacit solution is itself paradoxical. We might say that the RESULT in the first appellate ruling is that the judgment is reversed but that in light of the opinions issued, a PRECEDENT is set whereby both the knife and the confession are admissible. So now the trial judge on remand re-admits the knife and the confession, the jury convicts, the case is appealed again to the same panel, which is now bound as a matter of precedent by its earlier vote on each issue to affirm--which makes the whole exercise passingly strange.

AF said...

Professor Dorf:

In the knife/confession example, the conviction is reversed, but there is no binding precedent as to admissibility of the knife or the confession. To be binding precedent, the reasoning in an opinion must be part of the majority's grounds for deciding the case. In your hypothetical, there is no such reasoning. While it is true that two judges agreed that the knife is admissible, and a different combination of judges agreed that the confession was admissible, neither of these agreements are part of the majority's ratio decidendi.

This isn't to say that the decision wouldn't be frustrating for the lower court. But there is no paradox: the court would not be required to admit either the knife or the confession.

I think the problem you identify, to the extent it exists, is limited to the Supreme Court. Unlike lower courts, the Supreme Court's reasoning has a claim to be treated as binding even when it is technically dicta. After all, the Supreme Court expressly takes cases to resolve important issues and disputes among the circuits; this implies that the Court's reasoning is at least as important as its disposition of particular cases. As a result, it is questionable whether lower courts may disregard reasoning that appears in the majority opinion on the ground that this reasoning is not part of the Court's ratio decidendi.

But even with the Supreme Court, I'm not sure a lower court is bound by reasoning that commands the agreement of 5 justices, but is not part of the majority's opinion. I suppose that on occasion some of the dissenting justices join the majority opinion in part, which makes that part of the majority opinion presumptively binding even if is not joined by 5 justices who agree with the Court's disposition of the case. I defer to you on how this plays out in practice.

But in any event, this strikes me as a problem that is limited to the Supreme Court (and perhaps state supreme courts). For other courts, only the ratio decidendi is treated as binding. And this implies that there can be no direct contradiction between the disposition of an appeal and the binding precedent created by the court's opinion.