Should Justices Ever Switch Votes?: Miller v. Albright in Social Choice Perspective

This article will consider the implications of a rare, but conceptually significant, phenomenon in Supreme Court decision making. The Supreme Court has occasionally issued opinions in which the justices' own assessments of the relationships between and among identified dispositive issues, and the votes cast by the individual justices over those issues, demonstrate a logical voting path leading to the dissenting result. In an even rarer group of just three known cases, one or more justices has attempted to avoid the undesirable consequence of a Supreme Court ruling that is in a significant sense at odds with itself by conceding to a contrary majority on one dispositive issue, thus joining as part of a majority on the remaining dispositive issue or issues. This form of vote switching produces its own anomaly, albeit one that affects the internal logic of the opinion of the vote-switching justice, rather than one that affects the aggregate relationship between the underlying issue resolutions and the judgment for the Court as a whole. The justice who concedes to a contrary majority avoids the anomaly of an opinion in which the justices' collective resolution of identified dispositive issues leads to the opposite holding, but does so by casting a judgment vote that is inconsistent with the internal logic of his own opinion. By evaluating the Supreme Court's most recent voting-anomaly case, one which did not produce a vote switch, namely Miller v. Albright, this article will consider first, the conditions that give rise to the voting anomaly, and second, the conditions under which we could predict that individual justices would or would not be inclined to concede to a contrary majority on an underlying dispositive issue. This article develops a model, based upon the theory of social choice, which helps to distinguish the characteristics that underlie those rare cases which have produced vote switches from those underlying the more common, but still infrequent overall, cases in which in spite of a voting anomaly, no justice has chosen to switch his vote. The article concludes with some insights into why, despite the presence of a voting anomaly, such a vote switch did not occur in Miller itself.