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The Indispensability of Judicial Dissent

Justice Ruth Bader Ginsburg recently noted that she sometimes refrained from dissenting in the cases she regarded as less important like tax disputes and saved her dissents for the big ones like those on gender equality. Unlike some of her other obviously injudicious remarks, her opinion on this matter may be widely shared among judges. When I asked a friend who had become a federal appellate judge what most surprised him, he said it was norm among his colleagues to suppress written dissent in all but important cases. He was troubled by the practice but felt pressure to conform.

My friend is right to feel uneasy. It is a bad practice. First, it smacks of judicial hubris. It is often difficult to be sure how important a decision will be in the long run..  The fabric of the law is complex. For instance, the development of minor exceptions to a doctrine can eventually lead to pressure for its overthrow.  Even cases that are minor to Supreme Court justices can have large ripple effects.  Circuit court precedent is so decentralized that its future connections it will make are hard to predict.

Moreover, the law is not just about reaching a decision but providing the right reasons for that decision.  A dissent puts pressure on the majority to provide persuasive and compelling analysis on what is likely a hard question.  And sometimes dissents can change outcomes:  on reading a written rebuttal of their arguments members of a majority have been known to change their minds.

Finally, choosing when to dissent makes a matter of judicial discretion what should be one of obligation. A judge is paid to provide his honest view of what the law is, not whether a case is important enough for him to express a view. Unless a judge enjoys discretion by operation of law, as the Supreme Court does in its certiorari practice, he should follow what he believes to be the law without exercising discretion. That means dissenting whenever your view of the law conflicts with the majority.

There is one important implication of Judge Ginsburg’s remarks for positive law. While many justices and commentators point to its many unanimous decisions as evidence that legal consensus often reigns on the Supreme Court,  Ginsburg makes clear that some of this unanimity is faux agreement.  Indeed, a norm against dissenting in minor cases at the Supreme Court probably gains some strength from the benefits of such unanimity for the image of the Court. But the rule of law is best served not by a Court focused on burnishing its image, but on improving its work product. Dissents help make the reason of the law the best it can be.

Reader Discussion

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on August 07, 2017 at 01:36:22 am

Will you, perhaps, be editing an anthology of great dissents soon?

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Squabbling JD
on August 07, 2017 at 05:00:48 am

As an abstract principle, I share McGinnis’s perspective on this. But real, live judges adopt a different perspective. Why? Some conjectures:

1. Expectation: Clients/senior lawyers like receiving clear reports from their lawyers about a case. They’re anxious about outcomes, so what they really want is clairvoyance—but they’ll take clarity in the law as the most proximate substitute. Judges, knowing this, prefer to deliver greater clarity, even when it’s merely a veneer covering over a fractured decision. The professional bar gets what it wants, and praises judges accordingly. They only learn that the case law was misleading when they lose the NEXT case. Then they condemn the court’s decision in the case—but never think to condemn the court’s articulation of its decision in the PRIOR case.

2. Economics/resource scarcity: If we expected judges to write a dissent/concurrence every time they differed from the majority opinion in any particular, we’d get a separate statement from each judge in each case. And perhaps that would be ok, except that dissents are hard work—perhaps harder than majority opinions, in that they require the drafter to not only set forth a decision, but to also rebut the majority opinion. Judges, having finite time and attention, rationally allocate scarce resources to cases they value the most.

3. Team-building: Dissents are not just hard word for dissenters, but also for the majority, which must then re-draft its opinion to rebut the dissent. Allegedly judges seek to cajole their fellows to join in opinions, etc.—that is, they do NOT simply express their own views, but try to organize consensus views they can support. But a judge that has the habit of forcing her fellows to expend extra effort on lower-priority cases (or on ALL cases) may repel her fellows.

4. Tacit collusion/log-rolling: Similar to Team-building, a judge who finds herself in the minority may refrain from writing a dissent—and thereby weakening the persuasiveness of the majority opinion—because she hopes/expects that the other judges will reciprocate when she is in the majority and they are in the minority.

5. Legitimization: Finally, McGinnis echoes the arguments of the Legal Crits when he says—

…the rule of law is best served not by a Court focused on burnishing its image, but on improving its work product. Dissents help make the reason of the law the best it can be.

This is a fine academic perspective. But let’s recall that courts are not academic exercises. Throughout history, courts have existed as a means of dispute resolution that didn’t involve shoot-outs and riots. But courts can only achieve this benefit if they convey a sense of legitimacy, authority, and finality. And yes, this involves a modicum of stagecraft humbug: The posh buildings, the robes, the ritualized statements during confirmation hearings, etc. In short, arguably it IS the role of judges to burnish the image of the institution.

Dissents, by pulling back the curtain and letting people see the indeterminacy of the system, arguably undermine confidence in the results of the judicial system. Thus judges may want to use them sparingly.

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nobody.really
on August 07, 2017 at 07:49:45 am

This is a great idea. And not just the liberal cliches.

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Mark Pulliam
on August 07, 2017 at 10:59:47 am

"If we expected judges to write a dissent/concurrence every time they differed from the majority opinion in any particular, we’d get a separate statement from each judge in each case" - I seem to recall reading, that it was in fact the original practice for each justice/judge to write his own opinion on every case that came before him - perhaps a back to basics is in order; perhaps its not feasible, as you suggest, under current caseloads. Perhaps, too, there would be fewer litigations if litigators could not predict so neatly an outcome. And, politicians and special interest groups would be less apt to assert uniform and (near) full consensus on matters of laws and rights where they do not exist.

"Throughout history, courts have existed as a means of dispute resolution that didn’t involve shoot-outs and riots" - if the 2016 Election proved anything, a fair election, did not preclude riots and shoot outs from taking place anyway(ask Rep. Scalese); If Roe is ever overturned, I predict neither would a fair reversal of Roe preclude both riots & shoot-outs from being wipe-spread and unrelenting, (I would welcome its over-turn, riots and shoot-outs be damned, because I do believe it the only morally correct and constitutional result). Perhaps we could expect more frequent and more severe reactions, but perhaps, no different or less frequent/less severe reactions if judges would always issue their dissents.

"Legitimization" - if Washington State v. Trump proved anything, it is that the courts have lost legitimacy and credibility (with large segments of the country), due to an appearance of collusion inter & intra-court and between court and litigator. Perhaps if a judge was required to write his/her own separate opinion AND SIGN IT, there would be more respect for the courts and rule of law than presently exists. Perhaps, it wouldn't make a difference in particularly hot-button cases like this one.

If the reasoning you set-down are (mostly) valid (and I do see merit in much, but not all, of what you assert here), then for those reasons, it would only be a greater confirmation to me that RBG is as likely as injudicious in her legal reasoning as she is in her public pronouncements, because she has now risked the types of criticisms laid-down in this essay.

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Paul Binotto
on August 07, 2017 at 13:52:03 pm

I am not a lawyer. I am just an ordinary citizen. But I love this entire article and the comments --it's just a feeling that all's right with this nation so long as there are and men who can speak.....and speak intelligently.

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Martin Kessler
on August 07, 2017 at 14:06:27 pm

Well said Paul. RBG is once again - injudicious - but what is one to expect from another ACLU determined to divine new rights even if she has to go abroad to find them.

And you (and nobody) are correct - dissents may pull back the curtain and expose the indeterminacy of the system - not to mention in the "incoherence" of its reasoning(s).

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gabe
on August 07, 2017 at 23:54:57 pm

The first president to appoint federal judges generally at variance with the majority was Thomas Jefferson. His becoming president coincided almost perfectly with the advent of the Marshall Court, which differed from its predecessors among other ways in its abandonment of the English custom of seriatim opinions.

Jefferson lamented his appointees' tendency to join in Marshall's opinions, which Jefferson thought tended to stake out political positions beyond the judges' cognizance. (Consider, for example, that the dispositive jurisdictional issue comes last in Marshall's opinion for the Court in Marbury v. Madison.) Jefferson explained to his appointee Justice Johnson that the people were entitled to hear from dissenters when their were dissenters, particularly because otherwise they were apt to consider that Marshall's essentially Hamiltonian views were endorsed by all the justices, and Johnson ultimately told Jefferson that he would begin to write dissenting opinions, which he did--sometimes.

I describe this matter both in chapter 1 of my recent book, Thomas Jefferson--Revolutionary, and in my forthcoming article "Jeffersonian Republicans vs. The Federalist Judges," in The University of St. Thomas Law Review.

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Kevin Gutzman
on August 08, 2017 at 09:57:15 am

I seem to recall (I can't recall where) reading elsewhere where you made these interesting observations, either personally, or as quoted in someone else's review of your pending book. I look forward to your book and essay.

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Paul Binotto
on August 11, 2017 at 09:34:46 am

American courts are not merely broken, but more broken than we dare to fear.

As any judge with three drinks in him would tell you, RBG's practice is not merely widespread but ubiquitous. The only consistent repository of candor is from those who have left the bench, such as retired Chief Judge Patricia Wald of the D.C. Circuit, who admitted:

"I have seen judges purposely compromise on an unpublished decision incorporating an agreed-upon result in order to avoid a time-consuming public debate about what law controls. I have even seen wily would-be dissenters go along with a result they do not like as long as it is not elevated to a precedent. We do occasionally sweep troublesome issues under the rug…"

Patricia M. Wald, The Rhetoric Of Results and the Results of Rhetoric: Judicial Writings, 62 U.Chi. L. Rev. 1371, 1374 (1995).

Courts don’t write laws; they decide cases. When a court sweeps a “troublesome issue” under the rug, it usually sweeps a man’s life under the same rug. When our judges cook the books, the stench is unmistakable. As Llewellyn acidically remarked, “[s]uch action leaves the particular point moderately clear: the court has wanted [the result] badly enough to lie to get it.” Karl N. Llewellyn, Common Law Tradition 135.

Don't think for a New York minute that conservative judges like Michael McConnell, Janice Rogers Brown, or Gorsuch are any less slimy. l know for a fact that in many "lesser" cases, they don't even read the opinions they deliver. See e.g., Harrington v. Wilson, No. 06-1416 (10th Cir. Jun. 7, 2007) (withdrawn) (assigned, decided, and screwed up royally in a single day) (by McConnell); see also, Alex Kozinski (Chief Judge, Ninth Circuit), Letter (to Judge Samuel A. Alito), Jan. 16, 2004 at 5 (Ninth Circuit panels routinely issue 150 rulings in a three-day session); Perfunctory Justice: Overloaded Federal Judges Increasingly Are Resorting to One-Word Rulings, Des Moines Register, March 26, 1999, at 12 (fifty federal appeals decided in two hours in the Eighth Circuit, per the late Richard Arnold).

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LawDog
on August 11, 2017 at 09:38:14 am

"I must comfort myself with the hope that the judges will see the importance and the duty of giving their country the only evidence they can give of fidelity to its Constitution and integrity in the administration of its laws; that is to say, by everyone's giving his opinion seriatim and publicly on the cases he decides. Let him prove by his reasoning that he has read the papers, that he has considered the case, that in the application of the law to it, he uses his own judgment independently and unbiased by party views and personal favor or disfavor. Throw himself in every case on God and country; both will excuse him for error and value him for his honesty. The very idea of cooking up opinions in conclave begets suspicions that something passes which fears the public ear, and this, spreading by degrees, must produce at some time abridgement of tenure, facility of removal, or some other modification which may promise a remedy." Thomas Jefferson, Letter (to William Johnson), 1823.

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LawDog
on August 11, 2017 at 10:39:25 am

First, Gorsuch does the same thing ... but among judges, only candor is intolerable?

Second, in theory, judges aren't supposed to create rights; they recognize them.

Finally, if natural rights are universal, there is no logical reason why you can't find them in Stockholm or Sydney. l never understood Scalia's objection, common law decisions in Australia and even Zimbabwe can persuade by virtue of their reasoning. You have to use great care in employing them, but 2 + 2 still equals 4.

As you guys assiduously ignore it, let's review some truly impenetrable RW idiocy.

In recent years, the RATS (conservative) wing of the Court has read sovereign immunity in the Saddam Hussein sense, concluding that, because he was (they were) elected President of Iraq (appointed to the federal bench), any act he (they) takes is "an act of the people of Iraq" (the United States), heedless of whether the act in question was within the scope of their employment or, even expressly against the law. In essence, they claimed the jus summi imperii--the absolute sovereignty of the despot. The trial court in Stump even had a word for it: "tyranny." Sparkman v. McFarlin, 552 F.2d 172, 176 (7th Cir. 1977).

This is the vision of "federalism," in the mind of Saddam Hussein, Justice Kennedy and the RATS, and the Great Stalin: While every State is "bound" by the Constitution, the only cord which "binds" them is their own "good faith":

"The States and their officers are bound by obligations imposed by the Constitution and by federal statutes that comport with the constitutional design. We are unwilling to assume the States will refuse to honor the Constitution or obey the binding laws of the United States. The good faith of the States thus provides an important assurance that "[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land."

Alden v. Maine, 527 U.S. 706, 755 (1999). Truly, a more elastic cord never has been devised. And to these honorable gentlemen, only three words need be offered in rebuttal:

"ARBEIT MACHT FREI"

When you stroll through the gates of Dachau on your way to the ovens, you are assaulted by that slogan, reminding you of the inherent goodness of Man. That five Justices would sign off on such a stultifying statement staggers the imagination. And that Clarence Thomas, a descendant of slaves, would knowingly ascribe to it, eclipses all possible concepts of self-satire.

James Stanley was a soldier: a man who swore to fight and die to defend a document so feeble, it could not even protect him from crimes against humanity. In turn, this begs the dispositive question in his case: Would any sane human being, acting with knowledge that the Constitution had cloaked the new government in a impermeable shield of sovereign and judicial immunity, so “their betters” in Philadelphia could arbitrarily deprive them of their God-given rights at any time with absolute impunity, willingly consent to that arrangement? To even state the case for the Alden line of cases is to refute it.

As Justice Stevens has pointed out, sovereign immunity is fundamentally unjust, as it empowers the State to deprive its citizens of their "rights" with absolute impunity. Stevens, Two Questions at 827-28. It has further been abolished as a matter of jus cogens international law. International Covenant on Civil and Political Rights ("ICCPR") art. 2, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) (ratified by the United States Sept. 8, 1992) (signatory State must provide an effective remedy for rights violations committed by those acting in an official capacity); see e.g., Maharaj v Attorney-General of Trinidad & Tobago (No. 2), A.C. 385 (1979) (rule throughout the Commonwealth); Case C-224/01, Köbler v Austrian Republic, 3 CMLR 28 (2003) (rule for European Union). As the Supreme Court of Canada explains, the doctrine of absolute immunity is irreconcilable with the concept of rights under law:

"An absolute immunity has the effect of negating a private right of action and in some cases may bar a remedy under the Canadian Charter of Rights and Freedoms. As such, the existence of absolute immunity is a threat to the individual rights of citizens who have been wrongly and maliciously prosecuted. While the policy considerations in favour of absolute immunity have some merit, these considerations must give way to the right of a private citizen to seek a remedy when the prosecutor acts maliciously in fraud of his duties with the result that he causes damage to the victim."

Nelles v. Ontario, 2 S.C.R. 170 (1989).

Why shouldn't we listen to the rest of the world, gabe?

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