US Supreme Court: should a 5-4 decision be a precedent?

Over the years, I’ve read many threads about the US Supreme Court and the politicisation thereof, and the voting of SC judges along party political lines. So it occurs to me that maybe the US would benefit if decisions needed not just a majority but a super-majority (i.e. 6-3 or 7-2) to count as a precedent.

How say Americans?

I suppose this might also apply to lesser US courts, but thereof I am ignorant.

Perhaps as a GQ extension, could the US Senate & HoR legislate to that effect? Or would it require a constitutional amendment?

How could they prevent it from becoming precedent? How would it work out?

Let’s say it requires at least 6 votes, and a particular case comes before them and the ruling is 5-4. Then, let’s say a similar case comes to a lesser court. Would the fact that the ruling on the similar case having only been 5 votes instead of 6 prevent the court from using it as precedent and thus would not be able to reference that decision as a basis for a ruling on a similar case?

SCOTUS sort of assumed the power of judicial review itself in Marbury v. Madison, so I would guess that Congress and/or the President could apply this super-majority or disregard the Court entirely if they so chose. It would definitely create a constitutional crisis barring an amendment.

It is an interesting concept, but I’m not sure it would have the desired effect. Are you saying that the vote would have to be super to overturn an Act of Congress, a state Act, or what?

So, if under your proposal, my lawsuit to get a federal law overturned “fell short” by me winning 5-4, could I immediately refile? Would it be a loss since it doesn’t count as precedent? It would seem to clog the courts with all of the issues that the Supremes are split on.

It’s not a legislative thing or a constitutional thing. The idea that judicial decisions constitute precedent comes out of common law.

I don’t see how your idea really would be workable. Lets say, for instance, that John Doe is convicted of mopery because a police telepath read his mind and that showed he did it. So the case goes up to the Supreme Court, and, in a 5-4 decision, the court rules that using telepathy violates a defendant’s right against self-incrimination. Under the system in place, everybody who was convicted based on a telepathic confession gets their case vacated. Under your system, they wouldn’t, and every single person would have to appeal their cases? Wouldn’t that just overwhelm the court system?

It doesn’t even have to be nine, right? So any numbers that are arbitrarily arrived at might not even be constitutional.

It’s nine, because there are currently nine justices on the court. If there were fewer sitting on a case (e.g., if two had recused themselves because of a perceived conflict of interest), then a binding decision might be four to three. If the court were increased in size to 13, then a 7-6 decision would be binding.

You’re right that it is a precedent, but I think the OP meant a ruling that is binding precedent on lower courts.

Presidents have ignored the SCOTUS in the past. Famously:

“John Marshall has made his decision; let him enforce it now if he can.” -Andrew Jackson

That was when the SCOTUS told the president he could not forcibly remove some American Indians from their land. Jackson ignored the ruling and did it anyway.

IIRC Lincoln ignored the SCOTUS demands for habeas corpus.

So it goes…in the end the guys with the guns win. The law only works when everyone agrees to respect it.

The thing is, this happens, to a certain degree, already. The Justices tend to form a spectrum of opinion on each issue - when it is an issue they are in agreeemnt on, the opinion tends to be broader - the precedent covers more ground. On the tight decisions, that end up as 5-4, in order to get that 5 Justice majority, it is necessary that the opinion be written very tightly, and so it is much more easy to distinguish in future cases by lower courts. This can happen to the extent that while a decision is, of course, precedential, its precedential impact is minimal because it is so closely corralled by the facts of the case.

Technically, it was when SCOTUS told the state of Georgia that it had to release two missionaries it had arrested for being on Cherokee land without a permit from the governor. And Jackson also probably never said that.

Right, sorry, I guess I wasn’t being clear. I was just saying that if you make it a law that 6 Supremes have to be in agreement that would likely be unconstitutional since, constitutionally, there don’t even have to be six Supremes.

Seems he actually said:

“the decision of the supreme court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate.”

Not quite as snappy but amounts to about the same thing.

Sorry, but you’ve written rather tightly here. :slight_smile: (Usually my sin) Can you elaborate?

Right. But I’m sure the OP meant his question with a transformation in an orderly fashion. Obviously if there is a revolution, then all rules are gone.

But, I think in the last 150 years, everyone has accepted the ultimate rule of the Supreme Court, even though Jefferson and Jackson were opponents in the early days…

I’m not sure how that would be done and I don’t think it would be a good idea, for reasons of separation of powers.

Anyway, I remember one of my college profs once explained that part of the Chief Justice’s job was building consensus to avoid 5-4 decisions as often as possible, for the exact reason the OP mentions: they don’t make for strong precedent. That doesn’t mean there should be some kind of rule that they shouldn’t be precedent, though.


The justices are required to rule on actual situations, not abstracts, and so very often their decisions are strongly related to the facts of that situation. It’s not all Brown v Board, and “seperate but equal” being inherently unconstitutional. The process of putting a decision together is a process of coalition building. in a 9-0 decision, for example, that is an easy process, everyone is essentially on the same page. The decision can then be written broadly, to apply in many situations, and everyone is signing on.

When you get to closer decisions, however, the need to get that 5th justice on board limits the breadth of the decision, and so limits the degree to which the case is important precedentially. These days, its a matter of restricting it often so Kennedy feels he can sign on. Previously O’Connor was often in that spot. So, in order to bring the 5th justice into the coalition, the decision tends to get watered down - in particular, it becomes heavily based on the facts of that given situation. While it is still equally precedential as a 9-0 vote, the 9-0 decision, because of the way it is written, is more likely to be applicable to a broader range of future factual decisions. The 5-4 decision, on the other hand, has far less future effect, as it it likely to be very fact specific. A good person to look at on this is Richard Posner - in his decisions on the 7th Circuit Court of Appeals he enjoys seemingly going against SCOTUS precedent, and will often base it on factual distinctions.

Also, future courts are far more likely to overturn a 5-4 vote than a 9-0 (I guess, but I bet there is research on the power of stare decisis in split decisions).

Hope that is clearer. I could express it better over a beer or seven if you were buying.

It is clearer, thank you. The beer might have to wait a while, though.