Short answer. Yes, ordinarily. All three justices of a division must participate in the deliberation, and a unanimous vote is required for the judgment or final resolution. If they cannot agree unanimously, the case goes to a special division of five justices, where a majority vote suffices.
What the law says
The participation of all three Justices of a division shall be necessary at the deliberation and the unanimous vote of the three Justices shall be required for the pronouncement of a judgment or final resolution.
Rule 51, Section 3 — Quorum and voting in the court. Read the full provision →
What the law says
the Chairman of the division shall refer the case, together with the minutes of the deliberation, to the Presiding Justice who shall designate two Justices chosen by raffle from among all the other members of the court to sit temporarily with them, forming a special division of five Justices.
Rule 51, Section 3 — Quorum and voting in the court. Read the full provision →
What the law says
the concurrence of a majority of such division shall be required for the pronouncement of a judgment or final resolution.
Rule 51, Section 3 — Quorum and voting in the court. Read the full provision →
Unanimity is the ordinary rule for a division
Section 3 sets a demanding baseline for how a three-justice division decides a case. The participation of all three Justices of a division shall be necessary at the deliberation and the unanimous vote of the three Justices shall be required for the pronouncement of a judgment or final resolution. A two-to-one split is not, by itself, enough to produce a judgment or final resolution at this stage of the case.
What happens when the three cannot agree
A deadlock does not leave the case in limbo. When the vote is not unanimous, the Chairman of the division shall refer the case, together with the minutes of the deliberation, to the Presiding Justice who shall designate two Justices chosen by raffle from among all the other members of the court to sit temporarily with them, forming a special division of five Justices.
Majority rule takes over in the special division
Once expanded to five justices, the voting standard relaxes. The concurrence of a majority of such division shall be required for the pronouncement of a judgment or final resolution. A case that could not muster three unanimous votes can still be resolved by majority vote among the five, so the deadlock is broken rather than left permanently unresolved, and the case moves toward a definite judgment.
Why this two-tier structure exists
Requiring unanimity from a small three-justice division, but falling back to majority rule once the panel is expanded, balances the value of consensus in ordinary cases against the practical need to eventually resolve every case, even one where a three-justice division genuinely cannot agree. The raffle process for choosing the two additional justices also keeps the expansion from being manipulated toward a predetermined outcome, since neither party nor the original justices control who joins the panel.
Related provisions
- Rule 51, Section 3 — Quorum and voting in the court
- Rule 51, Section 2 — By whom rendered
- Rule 51, Section 4 — Disposition of a case