My co-authors and I, in the before-time of our college days, all took the same introductory economics class from Professor Helland.

Prof. Helland provided us with what is perhaps the greatest exam question I have ever been posed - if one were seeking to influence the decision-making process of the Supreme Court of the United States, which sitting Justice would you remove, and why? The question was getting at the Median Voter Theorem, which would suggest that removal of the more moderate justices would cause a distinct polarization in SCOTUS jurisprudence, and would (in the right circumstances) permit a third party to shape the ideological tenor of the binding precedent that the Court set.

I was reminded of the Median Voter Theorem by this post at the Volokh Conspiracy today. Essentially, Orin Kerr is speculating that much of the current term's decisions have been shaped more by the decision in Marks v. United States, 430 U.S. 188 (1977).

Specifically, the decision in that case found "When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds." This, functionally, is an embodiment of the MVT in SCOTUS jurisprudence.

What's interesting about Kerr's post is the suggestion that it's the Chief who's driving the decision to seek the center. So, in revisiting the question posed by Prof. Helland, how would one seek to influence the decision-making of the Court in light of the fact that centrist pluralities are being manufactured?

It could be suggested that one target the moderates, as a facial reading of the MVT would suggest. This would then shift the Marks pluralities in one direction or another (depending on the prevailing political climate), and thus permit the median that the Marks decision makes controlling to move in the direction desired by the third party actor.

HOWEVER, the ends-0riented utilization of a Marks plurality by the Chief suggests another way to pursue change at the Court - remove the Chief who is assigning the opinions with an eye toward capturing the middle. Without the concerted effort to keep the center-right plurality together, there is a more substantial probability that the plurality opinion in close cases would become more ideologically random. This would then allow more possibility of a competitive center, and (per the strong suggestion of the MVT) cause a moderation in the OVERALL tenor of the Court's decisions.

So, despite the fact that Prof. Helland was leading us to justify removing Justice O'Connor from the bench as a way to illustrate the MVT, it may in some instances be unproductive to target the median voter. As suggested by the Kerr post, it may be more productive to target a more ideologically biased person who is actively exploiting the MVT for partisan benefit. While this is hardly a robust analysis (and would need significantly more thought), it intruiged me to think of.