Abstract

Rule of Law, or Rule of Five?

Every Justice at one time or another adheres to what may be called the "rule of five." Their decisions result from this desire to get a majority of five votes, not from their detached interpretation of the Constitution. The real point is that everybody on the Court at least occasionally writes an opinion that, on some crucial point, is directly contrary to what the author had written in an earlier draft-and not because the author changed his or her mind but simply because the opinion "didn't fly." When Justices write directly contradictory drafts, or join and then "unjoin" opinions for reasons unconnected to what they think about the merits, surely they must think the rule of five describes constitutional law better than the rule of law does.