The Illogic of Median Justices?

[sent to law and courts regarding, cough, "median justices."] 
 

... one can only be a "median justice" if what you are counting is commensurable. Let's do it this way: assume a hypothetical Court with 9 members. The appeal is from a trial court sentence of 5 years for a first time marijuana user. In this hypothetical world, 5 justices vote to overturn the conviction, 4 vote not to.  So the good guys win. Let's say the rationalizations are as follows:

Justice-A: 5 years is too much for a first time marijuana user ("cruel punishment")
Justice-B: 4 years is too much for a first time marijuana user ("cruel punishment")
Justice-C: 3 years is too much for a first time marijuana user ("cruel punishment")
Justice-D: 2 years is too much for a first time marijuana user ("cruel punishment")
Justice-E: the jury was improperly instructed ("jury violation")

Justices-F: I don't count my views on severity because trial judges should have discretion in sentencing ("higher principle")    
Justice-G: I don't count my views on severity because trial judges should have discretion in sentencing ("higher principle")
Justice-H: I don't count my views on severity because trial judges should have discretion in sentencing ("higher principle")
Justice-I: I don't count my views on severity because trial judges should have discretion in sentencing ("higher principle")

One assumes that in this situation, there should be no precedent whatsoever, and that the rule should apply only to the parties. I had always thought this was the case and that Marks was not saying otherwise. I don't see how you can have a rule of law without five heads on board for something other than the outcome. 

The only people who are proximate to each other in this example are A-D. That is the only group for which you can apply median logic. The others are theoretically proximate to views only concerning the issue that they are expressing. (F through I may or may not agree with A through D's points). Of course, on the issue of whether the higher principle should apply here, I suppose F - I are proximate to A-D. But one could construct another hypothetical where they are not.

Proximity logic only works if you have a natural issue spectrum. If you have either/or legal rules and people applying different issues to the same controversy, you can throw out unidimentional logic. I have never understood, frankly, the logic of "counting" these things anyway.  
  
Regards.

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
New Website: http://seanwilson.org
SSRN papers: http://ssrn.com/author=596860