The Irrational Supreme Court


Abstract: The Irrational Supreme Court

The pejorative “irrational” is used to describe many defects in legal reasoning, but is generally not meant to be understood as a literal lack of rational thinking. Similarly, the “rational basis test” is not meant to determine whether a legislature is “not endowed with reason or understanding,” but rather if it has acted with some hidden, invidious motive. Incredibly, though, the Supreme Court has frequently issued truly “irrational opinions,” simply due to the fundamental nature of group decision-making.

Much has been written about Nobel Prize winner Kenneth Arrow’s “Impossibility Theorem,” which proved that, when faced with more than two issues, group voting might result in “a lack of transitivity.” For example, given a choice between three beverages, group voting might indicate that the group prefers coffee over soda and prefers soda over tea, but also prefers tea over coffee. There is no principled way to determine the group preference with such a lack of transitivity. Despite frequent claims that this lack of transitivity affects the Supreme Court, no any actual occurrences have previously been identified. In this Article, I display the first such example, but also show why Arrow’s theorem is not a significant cause for “irrational” Court opinions.

I will also analyze another, far more serious source of irrational decisions. Specifically, on numerous occasions, one party received the votes of a majority of the Justices on every relevant issue yet lost the case anyway. In this Article, I will prove what I term the “Irrationality Theorem,” the proposition that it is impossible to eliminate the possibility that the Supreme Court (or any other multi-member tribunal), will issue such an opinion. I will also show that there are several Supreme Court cases that unmistakably embody this irrationality, and discuss the unfortunate consequences of such decisions.


Constitutional Law | Courts | Judges | Jurisprudence

Date of this Version

March 2005