Precedent-Based Judgment Aggregation in the US Supreme Court

When a case is before the US Supreme Court, a precedent may apply. In cases in which a precedent is being considered, the Court needs to answer three questions: 1) Is the precedent good law? 2) Does the precedent apply to this case? 3) Should the Court uphold the precedent? In the event that the Court answers yes to the first two questions and no to the last, there is what David S. Cohen [2010] calls a precedent-based voting paradox. Cohen has identified eleven instances of this paradox in US Supreme Court decisions prior to 2010. We review Cohen?s paradox and relate it to the doctrinal paradox that has played a foundational role in the judgment aggregation literature. We also identify what is arguably one more instance of a precedent-based voting paradox in the period since Cohen?s article was published.