"I must dissent." Why?

• Author: Walbolt, Sylvia H.

The English judiciary has a tradition of seriatim opinions to decide a case in which each judge offers his or her own opinion. (1) Chief Justice John Marshall, who broke from that practice "to adopt the precedent of a single opinion of the Court, prized unanimity and managed to achieve consensus to a degree unparalleled since his era." (2) His concern for unanimity is not surprising: "The [c]ourt as an institution was not yet established. Marshall undoubtedly wanted the [c]ourt to speak with one voice to send America a strong signal: the role of the [c]ourt is to have the last say. Thus, individual views had to yield to the will of the institution." (3)

Nonetheless, there were both concurrences and dissents in the early decisions of the U.S. Supreme Court, reflecting that "freedom of individual expression was purposely institutionalized and continued by the [c]ourt, with a focus on assuming responsibility through concurrences and dissents in potentially significant or controversial decisions." (4) Simply put, "[t]he early [c]ourt established the philosophy that the credibility of the [c]ourt as a unit would be clarified and strengthened if individual justices articulated their own opinions." (5)

Today many might question whether the increasing number of sharply split decisions of the court--some receding from long-standing precedent--instead detracts from the court's credibility, making it appear that this country's law depends on who is in political power at the time the decision is rendered. Which prompts the question--what is the value of a dissent, particularly in a case where the highest court in the jurisdiction has spoken? Why should scant judicial resources be devoted to writing an opinion that has no force or effect whatsoever in the case in which it is rendered, and that may in fact adversely affect the collegiality that is so very important to appellate judges, especially when a dissent levels a personal attack on the author of the majority opinion? (6)

In fact, there are many sound reasons why judges at all levels decide they must provide their dissenting views. (7) The authors explore them below and also muse on the benefits and detriments of issuing dissenting opinions.

Is There a "Duty" to Dissent?

The duty of a judge has long been advanced as the basis for submitting an individual opinion. Thomas Jefferson believed that every justice of the Supreme Court should "[t]hrow himself in every case on God and his country; both will excuse him for error and value him for his honesty." (8) Justice Holmes, a great dissenter, referred to his "duty to express my dissent." (9) So, too, Justice Story asserted it was "an indispensable duty not to surrender my own judgment, because a great weight of opinion [is] against me, a weight which no one can feel more sensibly than myself." (10)

In the end, it is the individual judge's decision. Justice Ginsburg, in reflecting on dissents, observed that "with difficult cases on which reasonable minds may divide, sometimes intensely, one's sense of [j]ustice may demand a departure from the majority's view, expressed in a dissenting opinion." (11) Judge Wilson of the 11th Circuit Court of Appeals has explained that "My personal practice is to write a dissent only when I feel strongly about the result reached in the majority opinion. Such a practice is personal to each individual judge." (12)

Although believing it would be unpopular, Judge Blue felt it was his duty to dissent in Miller v. State, 782 So. 2d 426, 433 (Fla. 2d DCA 2001), when he concluded the three young defendants had not been proven guilty of manslaughter, declaring that "our justice system requires more than suspicion to sustain a criminal conviction." The effect of that dissent was the opposite of what he had anticipated. The Tampa Tribune wrote an editorial praising the dissent, and the state did not retry the case as permitted by the majority. (13)

When Have Judges Exercised a Duty to Dissent?

Law is not science or math. You cannot prove your answer. Consequently, most dissents are expressions of honest disagreements about what the law is in a particular case. Other times, dissents acknowledge the law applied in the majority opinion is the accepted law, but propose that it should not be. In fact, sometimes there is a close correlation between dissents and concurring opinions because judges who desire to explain what the law should be can do so in either a concurrence or dissent. (14)

Not surprisingly, social issues, such as discrimination cases and death penalty cases, bring out eloquent, forceful dissents, sometimes read from the bench. In fact, the term during which Justice Ginsburg orally announced from the bench a dissent in a partial-birth abortion case and a dissent in a Title VII case has been described as the term which will be remembered as the one in which she "'found [her] voice, and used it.'" (15) Justice Barkett used her voice to dissent in Williams v. Attorney General of Alabama, 378 F.3d 1232, 1250 (11th Cir. 2004): "This case is not, as the majority's demeaning and dismissive analysis suggests, about sex or about sexual devices. It is about the tradition of American citizens from the inception of our democracy to value the constitutionally protected right to be left alone in the privacy of their bedrooms and personal relationships."

She proceeded to invoke the "now famous words" of Justice Brandeis's dissent in Olmstead v. United States, 277 U.S. 438, 478 (1928), that when "[t]he makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness ... [t]hey conferred, as against the government, the right to be let alone--the most comprehensive of rights and the right most valued by civilized men."

Perhaps...