Sergio Verdugo (IE University – IE Law School) has posted The Uphill Case for Supermajority Voting in Constitutional Courts (Constitutional Studies, forthcoming) on SSRN. Here is the abstract:
Cristóbal Caviedes’s Supermajority Voting in Constitutional Courts is the most comprehensive normative treatment of voting rules in constitutional adjudication now available. He claims that, given certain conditions, judges in collegial constitutional courts should use supermajority rules when voting to make their decisions. This essay questions three of the argument’s assumptions. First, the claim that striking down constitutional legislation is worse than upholding unconstitutional legislation weakens where political processes are captured or hostile to vulnerable groups, even in well-functioning democracies. Second, the ceteris paribus method obscures how voting rules interact with appointment mechanisms, tenure, and party competition. Third, judges rarely face the sincere binary choice the argument assumes, and supermajority thresholds broaden the possibilities for strategic framing within the court. Voting rules should not be assessed apart from the institutional design, nor from their specific political context, in which they operate. Caviedes is aware of these limitations, which is why he presents his argument as a “core” case. Nevertheless, if the assumptions cannot be completely held, the desirability of such a core case can also be questioned. For example, if we do not assume that “well-functioning” democracies will always remain “well-functioning” (as we shouldn’t), we ought to then include as part of any “core” case the existence of mechanisms that may help to prevent or make it more costly for democratic erosion to proceed. The question of what function majority voting in courts may perform in the future, is, therefore, relevant for the institutional design of today.
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