Do Justices "Vote?"
Wednesday, July 25, 2007 at 10:27PM
Sean Wilson in Law & Ideology, composition

[the following are notes taken in Wittgensteinian style while vacationing at Cape Cod in the first two weeks of July, 2007: and in the third week of July while visiting Weirton ]

Political science is fond of saying that judges "vote" when they decide issues or cases.  Indeed, this way of speaking is now common among the elites in the network. They instill this way of talking to graduate students. The "studies" talk this way, and so do the participants at conferences, etc.

1.  Studying voting in and of itself is as meaningless as studying counting or tallying.

2.  Imagine a professor grading exams. What is more relevant? Do you study his marks or what produces them?

3.  The only reason you study "votes" is because they indirectly tell you something about the psychology that preceded the marks/noises ("voting").

4.  Imagine a pass/fail grade. When a professor enters the grade at the end of the term, is he or she "voting?"

5.  We don't use the term "voting" here because the grammar of the term stresses the mark or noise, whereas the grammar of "grading" stresses the "heavy lifting" that precedes it. 

6.  What does the term "voting" ordinarily imply? Probably these things: (a) a conclusion or endorsement [the finality of a decision]; (b) a limited set of options; (c) a lay activity [non-specialized? commonality?]; (d) capable of being undertaken ad hoc.

7.   So then, do justices' "vote?"  What about the conference vote? It isn't a "lay" vote, but is a sort of "feeling thermometer."  

8.  It is not that one could not "vote" with immense and complicated thought preceding the gesture; it is that the activity of voting isn't entailed by it.

10. What is the difference between these words: voting, solving, resolving?

11. The activity of solving or resolving suggests contemplation of some sort -- "mental steps" of some kind.

12. When a student takes an exam and answers a multiple-choice question, is he or she "voting?"

13. When a student answers an essay exam, it would not be called "voting," correct? Imagine that the exam question is value-centric in that it does not have a single correct answer. The professor evaluates it based upon how well course material is marshaled into a coherent analysis/opinion. Why does it seem inappropriate to say that the student is "voting" the exam rather than "solving" it?

14. Is it because of the way we are taught? If we were taught to call the answering of the essay exam "voting," would that make it so? Firstly, if we adopted a way of speaking that called the student's behavior "voting," it would only be a term confined to its use. That is, there would still be a conceptual difference between "voting" and "solving" no matter what name was given to the answering of the essay question.

15. Compare: the federal sentencing guidelines. The fact that this is its name does not mean that the guidelines are, in fact, "guidelines" -- for they surely are not. They are mandatory. (At least they were for over 10 years. Whether they are or not today is theoretically a matter of debate -- but I think not).

16. So if the essay-exam writer is not "voting" in the ordinary sense of the term, how can justices be voting when they decide a legal issue?

17. Of course, if a justice is particularly poor at solving or resolving, perhaps we might say that he or she was "voting." But isn't this intended as an insult?

18. We might say of such a judge that, instead of deciding, he voted.

19. Even this insult, however, is talking colorfully.

20. The activity of trying to form a well-reasoned opinion is closer to "solving" than "voting." But what if the subject mater is resistant to "reasoning?" (Is this even possible? How about: is harder to submit to reasoning?)

21. Compare three situations: (1) solving for X; (2) solving for the essay question; (3) solving for the academy awards.

22. It is funny that only (1) seems completely correct because of existing patterns of usage. Solve for X.

23. What is the standard use for (2)? Finding the answer? The expression suggests a quest or expedition. Whatever the nomenclature, you cannot deny that the idea involves piecing things together.

24. The problem is that (1) and (2) have answers that are more clearly governed by, respectively, rules and standards. You can distinguish between "good" and "bad," so to speak. But (3) is less clear. With respect to it, some may rightly say "this one was better than that one." Some might properly complain that the selections (or final work product) for (3) are not properly distinguishable from other selections (or forms of work).

25. Here is the question: if the means of deciding involve the same or similar cognitive process, Q, but the end result is not the same for purposes of demonstrating superiority -- does that matter?

26. Is art appreciation voting?

27. Wittgenstein's comments on aesthetics are helpful here. The words "good" and "beautiful" are, ultimately, sensations. But appreciation of aesthetics is a learned or acquired trait. You learn it by being exposed to it and the "rules" that comprise it. There may be disagreement about it, but as long as judgments follow the requisite process by the requisitely trained, this is all that can be accomplished (satisfactorily).

28. If someone like me had to judge a beauty contest, it would not strain convention to say that the behavior was "voting." This is because the activity in the mind most resembles what Wittgenstein says about the adjectives "good" or "beautiful." That is, there is a sensation in my brain -- probably a change in brain chemicals -- which cause a pleasing sensation. And so I say "this is good" or "I like her." Hence, if I decide the beauty contest like this, it would not strain conventional usage to say "that is my vote."

29. But what if the judgment occurred differently? What if it were considered "objective?" Let us say that 3 heterosexual women judge a beauty contest involving a talent competition between women of several states, and that there is a set of norms and rules which constitute a culture for this sort of activity. Is it right to characterize the judges' decision as "voting" where we mean that word NOT as a name (but a description)?

30. Why do we say so-and-so has to judge a beauty contest instead of saying so-and-s0 has to vote a contest?

31. Imagine if I were selected to judge an art or poetry competition -- to give some kind of award -- and I knew nothing about what art or poetry involved. Imagine if lay people judged art. Is the grammar of the vocabulary different? cf. The American Idol show. The people vote on the telephone but the three judges decide on the show. You get voted into the Pro Bowl, but inducted into the Hall of Fame.

32. Imagine someone who judges the case of another where no law whatsoever exists in the polity. Perhaps it is a dictatorship or monarchy. (I mean no "law" in the sense that something in writing tells the judge what he or she should do). Imagine that the person is asked to judge a case where one is alleged to have wronged another in some way. Or maybe the person is accused of violating the dictator's wishes regarding some kind of "criminal" behavior. Imagine that the judge in this case sits and listens. He hears testimony, etc. Imagine further that he wants to make a proper conclusion -- one that is not arbitrary. If he does this, is it not improper to say at the conclusion of the case, that "the judge voted?" (Or isn't it a strange expression given the convention of usage?). It is not that it cannot be said; it is that it is an odd or imperfect way of talking (something Wittgenstein calls "queer").

33. When political scientists say that judges "vote," what do they mean?

34. Does it mean nothing -- an idiosyncratic use? Or does it mean something about the cognitive process used in the behavior of judging? And if it is the latter, what evidence allows one to make this assertion scientifically? (Is it even intended as a scientific assertion?)

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