Ways of Criticizing the Court

Critics have attacked Supreme Court decisions not only for their substance, but also for their structure and inconsistency. Professor Easterbrook responds to these critics by arguing, first, that the increasing caseload of the judiciary, coupled with the techniques of Supreme Court case selection, makes more fractured decisions inevitable. Second, Professor Easterbrook applies Arrow's Theorem to show that it is impossible for critics to demand consistent decisions from the Supreme Court without requiring it to sacrifice its essential institutional nature.