Dissenting: why do it?

• Author: Smith, Robert S.
• Position: ESSAY

A woman bound for a honeymoon cruise made some last-minute purchases at a pharmacy--birth control pills and pills for seasickness. The pharmacist was bemused. "It's none of my business, lady," he said, "but if it makes you sick, why do it?"

Dissenting does not make me sick--I enjoy it, actually. But that answer, which would have been fine for the woman in the drugstore, is not really good enough if I am asked why I dissent--as I often do. When I am asked, I generally give a wise-guy answer along the lines of "because my colleagues make mistakes." But here, for once, I am going to take the question seriously.

It is a serious question because if you are a judge, there are good reasons not to dissent, even when you disagree with the majority. Nothing you say in dissent, no matter how brilliant, is the law or makes the majority opinion one bit less the law. In that sense, a dissent is a useless exercise. And dissents can do harm. You may annoy your colleagues. You may--by giving into the temptation of making the majority opinion sound worse than it really is--actually increase the damage that it does to the law. I wonder if Justice Scalia has ever kicked himself for saying, in his dissent in Lawrence v. Texas, that holding state sodomy laws unconstitutional was the equivalent of granting constitutional protection to gay marriage. (1) And there is a legitimate argument that, when you dissent, you injure the institution of which you are a part by lessening its credibility--the air of infallibility which, even if only shakily founded on fact, helps the courts preserve their role as the final arbiters of hotly-disputed questions.

And yet, I keep dissenting. Is it just because my ego makes me do it? Maybe. But I can think of better reasons--some of them more convincing than others.

1. Right will prevail. This reason is between ninety-nine and one hundred percent fantasy. The fantasy takes two forms: you may think that the brilliance of your dissent will bring a majority around to your side; or you may think that future judges will recognize your wisdom, and overrule the majority decision. Do not bet on either one.

   The first time I wrote a significant dissent--which I thought, as I usually do of my own dissents, was both lucid and unanswerable--I was really surprised that no member of the majority showed any sign of being even slightly influenced. As I remember, the author of the majority opinion (my colleague, Judge Victoria Graffeo) changed about four words of her draft, essentially as a courtesy to acknowledge the dissent's existence.

   Since then, I have been much less optimistic about the impact of my dissents on my colleagues, though a small corner of my mind still believes, each time, that my dissent is so persuasive no one can resist joining it. It actually has happened--I have a memory of two occasions, from among the more than eighty dissents I have written--that a single colleague's mind has been changed, but I have never flipped the majority by my eloquence. And, come to think of it, there were at least two other times when I circulated a draft dissent and lost votes.

   And yes, I...