Introduction
The Supreme Court has long been subject to criticism for its divided opinions and apparent inconsistencies. Legal scholars, practitioners, and the public frequently lament the lack of coherence in judicial rulings, accusing the Court of unpredictability, fragmentation, and political maneuvering. However, in his seminal article, Ways of Criticizing the Court, Judge Frank H. Easterbrook presents a compelling argument: inconsistency is not a failure of judicial reasoning but an inevitable byproduct of collective decision-making. Applying public choice theory and Arrow’s Impossibility Theorem, Easterbrook demonstrates that the Supreme Court, by its very structure, cannot consistently satisfy all fairness conditions expected of an adjudicative institution.
By dissecting the Court’s case selection process, the nature of its deliberations, and the paradoxes of voting, Easterbrook reframes judicial inconsistency not as a flaw, but as an unavoidable outcome of how the Court operates. His conclusion is both provocative and unsettling: expecting the Court to be wholly consistent is a utopian demand, and criticisms that assume otherwise are fundamentally misplaced.
The Supreme Court’s Institutional Constraints
Case Selection and Fragmented Decisions
Critics of the Court often argue that it is too divided and produces too many plurality opinions. Easterbrook responds by highlighting the Supreme Court’s case selection process as a key structural factor driving disagreement. Unlike lower courts, which must decide a broad range of cases, the Supreme Court exercises discretionary review. It selectively hears cases that present the most difficult and unsettled legal questions. Consequently, easy cases that would likely produce unanimous decisions are resolved at lower levels, while the Supreme Court grapples with the most divisive and complex issues.
As the volume of litigation increases, the Court’s discretionary docket further narrows, leaving only cases where lower courts have split or where deep constitutional and statutory ambiguities exist. This reality ensures that divided decisions are not anomalies but an intrinsic feature of the Court’s function. The very cases the Court chooses to hear are the ones most likely to provoke disagreement.
The Limits of Consensus in Judicial Reasoning
Another common criticism is that the Court should strive for greater unanimity and issue clearer, more consensus-driven rulings. Easterbrook rebuts this argument by pointing to the necessity of detailed reasoning in judicial opinions. While a minimalistic approach—where Justices agree on narrow holdings—might produce greater consensus, it would come at the cost of guidance for lower courts and legal practitioners.
The more the Court explains its reasoning and attempts to articulate broad legal principles, the more opportunities for disagreement arise. When Justices attempt to fully explore the nuances of a case, their differing interpretive methodologies, philosophies, and legal commitments become more apparent. Thus, fragmentation is not a sign of dysfunction but a consequence of transparency.
Why the Court’s Decisions Are Unavoidably Inconsistent
The Paradoxes of Judicial Voting
Easterbrook’s most powerful argument against institutional criticisms of the Court stems from public choice theory and voting paradoxes. Judicial decision-making, like any other collective choice process, is constrained by majority rule, which leads to a series of contradictions.
1. Cycling and Instability
One major issue is the cycling problem, where the Court cannot settle on a single doctrine because different majorities favor different positions in different cases. For instance, if some Justices prefer a strict rule, others favor a balancing test, and another group supports a third approach, the Court’s rulings can shift depending on the framing of the case. As a result, the Court may reach different conclusions in cases that, from a logical perspective, ought to be treated similarly.
2. Path Dependence
Another structural issue is path dependence, where the order in which cases arise can shape legal doctrine arbitrarily. If an early case establishes a precedent, later cases are constrained by it, even if a majority of Justices would now prefer a different rule. This means that historical happenstance can determine major legal principles, rather than consistent jurisprudential reasoning.
3. Strategic Voting
Justices are also aware of these voting paradoxes and may engage in strategic voting to influence long-term outcomes. A Justice might vote for a rule they do not fully support in order to prevent an even worse rule from becoming entrenched. While critics might see this as manipulative, Easterbrook argues that strategic behavior is a rational response to the constraints of collective decision-making.
Arrow’s Impossibility Theorem and the Limits of Judicial Consistency
Easterbrook’s most profound argument comes from Arrow’s Impossibility Theorem, which mathematically proves that no collective decision-making system can satisfy all fairness conditions while maintaining logical consistency. Arrow identifies five conditions that any "fair" decision-making system should satisfy:
Unanimity – If all members prefer one option, that option must be chosen.
Nondictatorship – No single member should always determine the outcome.
Range (Universality) – The system must allow for at least three ranked choices.
Independence of Irrelevant Alternatives – The choice between two options should not depend on other, unrelated alternatives.
Transitivity (Logical Consistency) – If a group prefers A over B and B over C, it must also prefer A over C.
Arrow’s theorem proves that it is mathematically impossible to satisfy all five conditions at once. Since the Supreme Court must satisfy the first four conditions, it cannot also guarantee logical consistency (condition 5).
Easterbrook explains that stare decisis (precedent) does not resolve this problem. Because prior rulings are themselves inconsistent, Justices can selectively cite precedents to justify any outcome. Thus, rather than enforcing consistency, stare decisis exacerbates legal instability.
Conclusion: The Futility of Demanding Perfect Consistency
Easterbrook ultimately argues that criticisms of the Supreme Court for inconsistency misunderstand the nature of judicial decision-making. The Court cannot be perfectly consistent because no collective decision-making body can be. The structure of majority rule, the multi-dimensional nature of legal issues, and the accumulation of contradictory precedents all ensure that some degree of inconsistency is inevitable.
However, this does not mean that criticism is entirely misplaced. Easterbrook suggests that instead of demanding institutional consistency, critics should focus on substantive legal arguments and on holding individual Justices accountable for their reasoning. Each Justice can—and should—strive for a coherent jurisprudence, but the Court as an institution will always face inherent contradictions.
In the end, Easterbrook warns against utopian expectations of a perfectly unified and logically consistent Court. Instead, legal scholars and practitioners should accept inconsistency as an unavoidable feature of the judicial process and focus their energies on substantive debate rather than impossible demands.
Final Thoughts
Easterbrook’s analysis is a crucial reminder that institutional criticism must be grounded in reality, not idealized conceptions of what courts ought to be. By applying public choice theory and Arrow’s Theorem to Supreme Court decision-making, he reframes inconsistency not as a failure, but as an inevitable structural feature of collective adjudication.
For those engaged in legal scholarship, judicial politics, or advocacy, Easterbrook’s work offers a sobering but necessary perspective: the Court is not failing—it is simply functioning as it must. Instead of lamenting inconsistency, we should acknowledge its inevitability and redirect our critiques toward substantive legal reasoning rather than institutional perfection.
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