The McDonald Paradox - Should We Avoid It and Switch to Issue Voting?

In my previous posts about last week's decision in McDonald v. Chicago, I demonstrated that the decision is a voting paradox, illustrated the paradox, and explained why the "narrowest grounds" rule of Marks v. United States wouldn't apply for a lower court or lawyer trying to make sense of the opinions.

Another illuminating aspect of voting paradox cases such as McDonald is that they draw our attention to an often-overlooked part of Supreme Court decision-making -- that the Supreme Court reaches resolutions by voting on the outcomes of cases rather than on individual issues within the cases.  By way of explanation, the Court (and other appellate courts in this country) decides cases by having the individual Justices vote on the outcome in the case -- whether to reverse or affirm the lower court’s judgment.  The Justices do not vote on the issues that determine the outcome.  The voting paradox arises nonetheless because the Justices' opinions reason based on issue.  Thus, when we add up positions on the various issues, as I have in my previous posts, we can see the voting paradox arise.

One recurring debate among scholars studying the paradox is whether the paradox justifies a change in this system -- from outcome-based voting (as described above) to some form of issue-based voting.  Supporters of issue voting argue that issue-based voting avoids the seeming injustice of voting paradoxes, is fairer to litigants, and provides better guidance to lower courts and the public.  After all, if the Court voted only on the issues and let the outcome logically flow from the resolution of those issues, no paradox as I've described it could arise.  Thus, in McDonald, the Court would vote on the two issues of whether the Second Amendment was incorporated through the Due Process Clause or the Privileges or Immunities Clause.  Because there would be separate majorities concluding that neither of these clauses incorporates the right to bear arms, the outcome would then logically be that the Second Amendment is not incorporated.  In an issue-based voting world, without any change in the Justices' positions on the issues, last week's headlines would have declared that Chicago won and the Second Amendment is applicable only to the federal government.

Critics of a change to issue voting object that issue voting promotes strategic identification of issues because issues can always be manipulated or even split into sub-issues, which can themselves result in voting paradoxes.  Strategically determining issues within a case would violate a basic requirement of voting fairness, Kenneth Arrow’s requirement of independence of irrelevant alternatives.  Under an issue-voting system, judges could identify issues in a case solely in order to reach other issues or outcomes, which goes against the principle that judges' preferences on an option should not be linked to other alternatives.  Also, in an issue-voting world, Justices would have an incentive to question precedent in order to create paradoxes within seemingly single-issue cases, something I've identified as precedent-based voting paradoxes.  Still another argument is that the Supreme Court, like any collective body that attempts to aggregate the preferences of individuals, will always produce irrational results some of the time, and we should just live with it.

This debate will continue, especially when landmark decisions such as McDonald turn, not on grand theories of constitutional law, history, or policy, but rather on the minutiae of Supreme Court voting protocols.