Dissenting

• Author: Hon. Paul E. Pfeifer with Robert L. Burpee
• Position: The Honorable Paul E. Pfeifer, who recently retired after 24 years as an associate justice of the Supreme Court of Ohio, now serves as executive director of the Ohio Judicial Conference. Robert L. Burpee was his senior judicial attorney at the Ohio Supreme Court.
• Pages: 20-28

Published in Litigation, Volume 43, Number 4, Summer 2017. © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not

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Dissenting

HON. PAUL E. PFEIFER WITH ROBERT L. BURPEE

The Honorable Paul E. Pfeifer, who recently retired after 24 years as an associate justice of the Supreme Court of Ohio, now serves as

executive director of the Ohio Judicial Conference. Robert L. Burpee was his senior judicial attorney at the Ohio Supreme Court.

Blind belief in authority is the greatest enemy of tr uth.

—Albert Einstein

Dissenting is an es sential part of being a justice. Even the most

mundane, go-along-to-get-along justice is g oing to disagree with

fellow justices from time to t ime. Over the course of 24 years, I

(Justice Pfeifer) was fortunate to have precious few mundane

judicial colleagues, but I did encounter ma ny who were wrong

and I did have occasion to tr y to correct them. In essence, a

dissent is an attempt by someone on the losi ng side of a judicial

determination to convince t he other side that it is wrong.

Of course, being on the wi nning side of a judicial determina-

tion does not mean that one is right , that the case is correctly

decided, or that the outcome is just. What it mea ns is that one

is in the majority. On our court , being on the winning side had

nothing to do with r ight or wrong, precedent or principle; it had

everythi ng to do with getting three ju stices to agree with you.

When I discussed that sit uation early in my judicial career—

that there is no right a nswer, that there is only a majorit y an-

swer—I was accused of being “politica l.” But it isn’t politics; it’s

pragmatics. Whether m aintaining a centuries -old precedent or

overturnin g it, regardless of whether the “right” legal a nswer

is reached, four votes wins a nd three votes loses. Across the

decades, I worked with many justices. O ften they came to the

court thin king that being in the majority mea ns being right. But

it doesn’t. All it really mea ns is having at least four votes.

The bottom line is that there isn’t a lways an objectively right

answer. Often there is one, especia lly when addressing statu-

tory or administ rative provisions. When our court voted 7–0

on a case, it is almost cert ain that we reached the right result

based on the law and facts b efore us. But when even just one of

us dissented, that mea ns that at least one smart, legally a stute

person thought otherwi se and, thus, that the majority m ight not

be right. Not that it matters .

The Best Dissents

As it happens, the very best d issents are consigned to the dustbin

of history. That’s because the most effec tive dissents aren’t dis-

sents at all, though t hey originated as dissents. Persuasive di s-

sents convince someone on the initia l prevailing side to switch

votes. If enough votes switch, the d issent is no longer a dissent.

An extreme example of th is happened a number of years ago.

Our court voted a case of f the calendar by a vote of 7–0. Although

7–0 usually means we were rig ht, it doesn’t always. After the

court had voted in conference, my clerks and I di scussed that

particula r case. I decided to hold the case, meaning that t he

court’s decision would not be released as scheduled. Mea nwhile,