The corrective careers of concurrences and dissents.

• Author: Mendenhall, Allen
• Position: Symposium: The Role of the Judge in the Anglo-American Tradition

"A judiciary that publishes dissents and concurrences serves as the exemplar of justice." (1)

Justice Ruth Bader Ginsburg stated in 2015 that the liberal wing of the United States Supreme Court ("the Court") deliberately voted together as a block. (2) "We agreed," she said, that "when we are in that situation again," referring to the Court's per curiam opinion in Bush v. Gore, 531 U.S. 98 (2000), and the four dissents that criticized it, "let's be in one opinion." (3) She apparently would have preferred one unified dissent to four separate dissents. "If you want to make sure you're read," she added, "you do it together, and you do it short." (4) This strategy might explain why she, Justice Stephen Breyer, Justice Sonia Sotomayor, and Justice Elena Kagan joined Justice Anthony Kennedy's opinion in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), even though, in Justice Antonin Scalia's words, that opinion "lack[ed] even a thin veneer of law," (5) consisted of "mummeries and straining-to-be-memorable passages," (6) and diminished the "Court's reputation for clear thinking and sober analysis." (7)

Equally significant in Obergefell is the fact that the conservative wing of the Court authored four separate dissents rather than one unified dissent. Justice Scalia and Justice Clarence Thomas joined Chief Justice John Roberts's dissent. Justice Thomas joined Justice Scalia's dissent. Justice Scalia joined Justice Thomas's dissent. And Justice Scalia and Justice Thomas joined Justice Samuel Alito's dissent. The conservative wing of the Court, having lost the votes needed to achieve a majority, seemed less interested in voting as a block and more interested in registering their personal views for posterity. They apparently could not achieve the consensus necessary to produce one united dissent of four justices, at least not without sacrificing the rhetorical intensity and originality that characterized each dissent.

Why might it matter that each dissenter authored his own dissent in Obergefell? What would compel these dissenters to add their losing arguments to the vast deposit of rejected legal propositions? This essay seeks to answer such questions about concurring and dissenting opinions, which consist of nonbinding statements, rationales, and explanations by judges and justices in a particular case. I will not focus on Obergefell but more generally on the practice of authoring non-binding opinions from the bench. I will argue that such opinions, although lacking in compulsory application and effect, contribute to our fund of knowledge, diversify our perspectives, and shape the trajectory of the law as it is embedded in a textual network of cases.

Judges are dialogic, discursive actors who, by framing and molding legal precedents, participate in the transmission of cultural postulates and practical solutions to future generations with unforeseen conflicts. Judges are in this sense the conduits through which pass selectively retained principles and gradual modifications in the rules that govern society. This essay does not question whether judges fully comprehend their individual role in this aggregate process of adjustment and trial-and-error. One suspects that judges have studied enough cases to comprehend the possibility that their writings may one day be vindicated or revisited if a future court adopts their views.

Understanding why judges author concurring or dissenting opinions that do not obtain as law requires some historical mapping; thus, I begin by supplying a brief account of the opinion practices of the Court. I focus on the Court and not on state courts or inferior federal courts because the Court provides widely recognizable examples of concurring and dissenting opinions. I then discuss why nonbinding opinions such as concurrences or dissents are constructive. By calling certain writings constructive, I am not passing judgment on their merits but merely suggesting that their arguments have enjoyed successful careers in that later courts found those arguments to be compelling. The success of these writings, some of which have been vindicated over time, owes to their ability to shape the character and facilitate the development of American constitutional law. I conclude by discussing how such opinions reflect and enact the common-law theories on which the American legal system has flourished, and finally by celebrating concurring and dissenting opinions as an intricate and important form of judicial service to the legal profession.

1. A BRIEF HISTORY OF THE OPINION FORM IN THE UNITED STATES

   Sir Matthew Hale and Sir William Blackstone explained that judicial opinions in England traditionally were a source of unwritten law, or lex non scripta, derived from custom and read from the bench but not transcribed in official reports or indexed in a formal corpus. (8) Judicial opinions began as an oral medium, not a written record. They were considered evidence of what the law was, but not the law itself. (9)

   From the thirteenth to the fifteenth century, opinions were often written down, in French, and compiled in Year Books. (10) Lawyers began citing opinions--some written, some unwritten--in their arguments before the courts, although there was no systematized mode of citation. (11) As early as the fifteenth century, lawyers produced abridgements, or digests, to review the state of the law across England. (12) These sketchy compilations summarized and classified opinions and could be referenced in the courtroom as authority for particular propositions. (13) During the fifteenth and sixteenth centuries, a comprehensive scheme of methodical and widespread adherence to written precedent emerged gradually by slow degrees. (14) However, not until the sixteenth and seventeenth centuries did judges and litigants treat opinions as authoritative and binding in a manner that resembled the modern sense of precedent. (15) The publication of Sir Edward Coke's Institutes of the Lawes of England over the course of nearly two decades during the early seventeenth century provided direction for both jurists and attorneys who wished to substantiate their arguments with concrete holdings. (16) Still there were no certified court reporters or verbatim transcriptions; the enterprise of publishing reports or digests was often personal and selective, insofar as reporters often chose to record only cases they liked and to disregard cases they disliked. (17)

   From approximately 1600 to 1800, the British House of Lords enjoyed supreme appellate jurisdiction over cases in common-law and equity courts. (18) During that time, the House of Lords did not publish reports of its decisions, seriatim or otherwise. (19) Most cases were ultimately determined by intermediate appellate courts, including the Exchequer Chamber, the Court of Common Pleas, and the King's Bench, which regularly issued seriatim opinions that were transcribed by reporters. (20) Prior to American independence from Great Britain, appeals from colonial courts went before the Privy Council in England. The Privy Council reached decisions by majority vote but issued those decisions as unified pronouncements, regardless of dissenting views. (21) Because all decisions of the Privy Council were subject to the King's review, and the King, the site and symbol of the law or body politic, (22) could not articulate

   simultaneous, contradictory positions, the appearance of unanimity within the Privy Council was paramount. (23)

   In its early years, after the adoption of the Judiciary Act of 1789, the Court, following the practice of English common-law courts--specifically the King's Bench--typically rendered decisions in the form of per curiam and seriatim opinions. (24) The near obligatory practice of rendering written opinions was an American innovation and a departure from the English custom of residual orality. (25) The fact that the United States Constitution was written perhaps necessitated the textual documentation of judicial opinions in books, digests, and reports.

   During the tenure of Chief Justice Oliver Ellsworth (1796-1800), the third Chief Justice of the Court, seriatim opinions became less common and were abandoned during the tenure of Chief Justice John Marshall (1801-1835), who orchestrated consolidated opinions among the justices, much to the chagrin of Thomas Jefferson. (26) Justices who concurred with the prevailing rationale no longer authored a separate opinion to express their agreement. (27) Justice William Johnson, a Jeffersonian Republican, was the notable exception, authoring nearly half of the dissents that were produced by members of the Court during his tenure on the bench. (28) Chief Justice Marshall, for his part, authored most of the Court's majority opinions, which were issued with the phrase "opinion of the Court" to lend the impression that the justices spoke with one voice. (29) Collegiality and consensus-building must have been a high priority because, after work hours, the justices resided and dined together in a small boardinghouse on Capitol Hill, away from their families, where court conflicts could have incited personal quarrels. (30) Abandoning the seriatim mode and dissenting opinions also quickened the publication process; over a quarter of the cases decided by opinion between 1815 and 1835 were published in no more than five days. (31)

   The period late in Chief Justice Marshall's tenure to approximately 1905 involved the rise of dissenting justices. (32) Chief Justice Marshall himself began to author dissents (33) as the Court increasingly decided cases through majority rather than unanimous opinions. (34) Dissents proliferated during the mid-nineteenth century and into the twentieth century. (35) Justice John McLean and Justice Benjamin Curtis authored memorable dissents in Dred Scott v. Sandford. (36) Forty-eight years later, Justice Oliver Wendell Holmes Jr.'s three-paragraph dissent in Lochner v. New York (37) became one of the most...