What can dissents teach us?

• Author: Shepard, Randall T.
• Position: Perspectives: Notable Dissents in State Constitutional Cases

We most commonly think of judicial dissents as moments of poetic protest, a moment when the losing side on appeal rises up in dudgeon to take pokes at the majority. As much fun as this sometimes is, the more interesting matter is what such moments can teach us about the law and about the judicial craft.

The dissenting opinion in the form familiar to modern lawyers has not always been part of this country's judicial practice. In most American courts of last resort, the appellate judges originally followed the English practice of announcing their individual opinions seriatim so that each judge's views were publicly expressed. (1) This tradition persisted in the United States Supreme Court until the appointment of Chief Justice John Marshall. (2) The Marshall court ushered in a new practice of issuing a single opinion for the whole bench rather than separate opinions for each of the justices. (3) The unanimity of the court eventually wore out as political disputes arose. New appointees such as Justice William Johnson challenged the value and wisdom of submitting to a single opinion that they "would not wish to be understood to have given." (4)

Although modern courts still follow Marshall's lead in issuing a single opinion to represent the prevailing view, they also preserve the legacy of Justice Johnson by avidly engaging in the practice of filing dissents and concurrences. This hybrid approach to the writing of judicial opinions has set the stage for some of the most magnificent works of legal writing to be preserved for future generations rather than discarded like yesterday's trash. Many commentators, for instance, point to the dissent of the first Justice Harlan in Plessy v. Ferguson (5) as the paramount example for both eloquent dissent and the power of a single justice to shape future decisions while preserving the moral righteousness of the court. (6)

Despite such examples of elegant legal writing, many dissents remain overlooked. (7) Indeed, it is because of, or perhaps in spite of, the fact that dissents sit on the losing end of the substantive legal debate, that many commentators focus not on the substantive force of dissents in shaping the law, but rather on their intrinsic value to the judicial process as a whole. (8) While some scholars emphasize the darker side of dissents--damage to congeniality on courts, harms to the public image of the judiciary, and the jurisprudential confusion they sometimes breed--others are more generous. (9) The generous view portrays the dissent as fulfilling a vital role in clarifying the law by enhancing the quality of majority opinions, stimulating the intellectual exchange among judges and, ultimately, serving as a "safeguard of democracy." (10)

In addition to these benefits of dissent, a good many commentators suggest that the true value of the dissent is its role as a protest against the position taken by the majority. That is, the dissent seems most valuable, and certainly most memorable, when it represents, in the words of Chief Justice Charles Evans Hughes, "an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed." (11)

While it may be that the dissent is at its greatest when its voice to the future corrects some egregious error of the past, such occurrences are rare. That does not eliminate, however, the value of a dissent as a teaching tool for future readers. (12) Sometimes the voice of the dissent, even when it is speaking in legal error, can still provide valuable lessons about the law and about the process and strategy of serving as a judge. Some of the lessons are the subject of this essay.

LESSON 1: WITH DISSENTS, THINGS ARE NOT ALWAYS WHAT THEY SEEM

It is hardly profound to note that one of most important lessons dissents can teach us is that majority opinions are not always as clear as they first appear. From first-year law school on, lawyers work to determine which judges agree with which parts of an opinion, especially for those issued by the nation's highest court. Besides assisting in the obvious and extremely popular game of judicial divination, diligence sometimes rewards the student with critical information about the actual holding of a case. (13)

Such is the case in the Indiana Supreme Court's decision in City Chapel Evangelical Free Incorporated v. City of South Bend. (14) The court confronted a claim from the members of City Chapel that they were entitled to proceedings in order to determine if the city of South Bends' condemnation of their property violated their right to freedom of religion under both the Indiana and Federal constitutions. (15)

While a majority of the court ultimately concluded that the taking might burden freedom of religious exercise under the Indiana constitution and held that City Chapel was therefore entitled to a hearing, this does not tell the whole story. (16) Careful examination of the opinion and the three dissents, including my own, reveals that on the First Amendment claim, a majority of the court held against City Chapel. Although Justice Dickson, author of the "opinion of the court" was careful to note this fact, (17) a less conscientious jurist might not have done so, and some unsuspecting reader may have simply assumed that his was the majority opinion on both constitutional claims.

The simple lesson of City Chapel is that, even in an age when computer aided research makes legal research so much easier, we must still remain vigilant lest we be misled by judicial slight of hand.

LESSON 2: SOMETIMES, ENOUGH IS ENOUGH AND TOO MUCH IS MORE THAN ENOUGH

Another lesson that dissents can teach is that it is sometimes best to avoid bringing a particular issue into the spotlight unless we are ready to deal with the consequences of exposing that issue to the light of day.

Such was the story of my own dissent in State v. Garcia. (18) There, our court considered the constitutionality of a roadblock established to intercept drunk drivers. The Garcia majority declared that under the Fourth Amendment the relatively ordinary roadblock procedure used by the police was legitimate. I dissented based on my belief that the roadblock failed to live up to the requirements established by federal precedent and therefore "what the Court [said] about the Fourth Amendment [and the protection it provides was] too little." (19)

That dissent might...