February 7, 2007

Are dissenting opinions vanity or dishonesty?

Tony Mauro has an interview with Supreme Court Justice Samuel Alito:
Alito ... commented on Roberts' efforts to achieve greater unanimity on the Court, even at the expense of making broad rulings. Alito thinks there is merit in the idea, and says Roberts has already "worked to prevent fractured opinions." But Alito says Roberts has not made the pitch for unanimity to the justices as a group. For his part, Alito says, "I don't feel too strongly about writing separate opinions."

But he says Roberts' campaign points up a problem that any appellate judge "struggles with," namely, how far to go in compromising in the interest of unanimity and giving clear guidance, without crossing the line into endorsing "something you don't believe in."

Alito recalled that in his early days as a judge on the 3rd Circuit, he heard a judge -- whose name he can't recall -- lecture on the evils of writing dissents. "He said it was nothing but vanity, and that it didn't achieve anything. That's one side of it."
Aw, come on, who was it?
The other side, which Alito worries about, is the dishonesty of signing onto an opinion with which you disagree.

"I think of the analogy of someone coming to your door and asking you to sign a petition," says Alito. "You say no, you don't agree with it, and the person at your door says, ‘Sign it anyway.'"
So, dissenting opinions: vanity or dishonesty? I think it's somewhere in between. It's not really dishonest to sign on even though you disagree. Once a majority of the Justices have one opinion, it will be the precedent in future cases, and you'll cite it and follow it then. What difference does it make if you start following it before it issues? Should you always do that then? Should we agree with the unnamed Third Circuit judge who said that dissenting opinions were nothing but vanity? I'd say that is going too far, but reading dissenting opinions, you can encounter a lot of unseemly preening. Still, there is an important place for dissent:
Justice William J. Brennan, Jr., published an article in the January 1986 Hastings Law Journal, “In Defense of Dissents,” confessing that when he first came to the U.S. Supreme Court, he did not write a single dissent, although 42 of the 56 opinions he authored in 1985 were just that. So why dissent?

After all, the law is made by those who command the majority, not the outsiders. Even Justice Oliver Wendell Holmes, the "Great Dissenter" at one point opined that dissents are generally "useless" and "undesirable." Justice Potter Stewart labeled dissents "subversive literature."

But by the time he wrote the article Justice Brennan was a true believer in the power of dissent. In this way flaws are demonstrated in the majority’s legal analysis, thereby laying the basis for future corrective action. And a dissent holds the majority accountable for the rationale and consequences of its decision. "At the heart of that function is the critical recognition that vigorous debate improves the final product by forcing the prevailing side to deal with the hardest questions urged by the losing side."
Too much antagonism toward dissent -- in judicial opinions and elsewhere -- betrays a fear that one's arguments are flawed. But that doesn't apply to what Chief Justice Roberts has talked about, which is simply narrowing the scope of the decision to the point where it can eliminate the disagreement.


Simon said...

"We must not forget that the dissenting opinion is often very valuable in the development of the law in the long term. Often, it contains the germ of an idea, which in a new generation will give forth to the large oak tree. So we should not underestimate the value of those dissenting judgements." - Lady Justice Arden, HLS, 9/28/05.

I think Scalia was right in his recent discussion with Breyer that you have to bifurcate the question - the role of a dissenting opinion at the Supreme Court level is different to the role of a dissenting opinion on a Court of Appeals. At the court of appeals level, a dissent can serve to warn other circuits away from adopting the same approach, and to brief the Supreme Court that this decision is flawed. On the Supreme Court level, Scalia notes that he's mainly writing to change the long-run direction of the law, to plant the seed that Arden suggests may grow into an oak tree. Moreover, stare decisis is not an inexorable command, and in assessing whether a case was correctly-decided, a well-written dissent may help identify that a case is not well-grounded in law, and that it must stand or fall not on its own merits, but on whatever protections stare decisis can avail it. And, of course, a dissent may not persuade colleagues that a particular point of law should change the outcome in the instant case, but it may suggest to them a point of law which affects a different case.

And even if it is mere vanity (or at least having a clear conscience) - what of it? On a simplistic level, the smell test is simple. Unless you'd have joined Dred Scott or Plessy, you see the value of a dissenting opinion. :p

Simon said...

Oh, and I loved this from Dahlia Lithwick a few years back:

"There is a phenomenon that most liberal law students describe as the devastating effect of reading their first Scalia dissent: You read what you thought was a compelling majority opinion in some good, liberal, results-oriented case, and then you read a blistering, flawless Scalia dissent and realize, 'Oh my God, he's right.' For some of us, law school is a protracted exercise in fighting the alluring tractor-beam pull of those Scalia dissents. ('How can something so right feel so wrong?')"

Needless to say, I take something akin to the Ben Kenobi view on resisting tractor beams. ;)

Unknown said...

Narrow rulings with broader support from the Court are much better than broader rulings with narrow support, if only to avoid the unnecessary risk of 'legislating from the bench.'

Simon said...

Tim - that is one view, and it is certainly the O'Connor attitude, but at best, it isn't a very persuasive one, and I think it's not only wrong but completely backwards. I think the better argument is this:

When I was in law school, I was a great enthusiast for this approach -- an advocate of both writing and reading the "holding" of a decision narrowly, thereby leaving greater discretion to future courts. Over the years, however -- and not merely the years since I have been a judge -- I have found myself drawn more and more to the opposite view. There are a number of reasons, some theoretical and some very practical indeed ... [primarily the] obvious advantage of establishing as soon as possible a clear, general principle of decision: predictability. Even in simpler times uncertainty has been regarded as incompatible with the Rule of Law. Rudimentary justice requires that those subject to the law must have the means of knowing what it prescribes.

... I had always thought that the common-law approach had at least one thing to be said for it: it was the course of judicial restraint, "making" as little law as possible in order to decide the case at hand. I have come to doubt whether that is true. For when, in writing for the majority of the Court, I adopt a general rule, and say, "This is the basis of our decision," I not only constrain lower courts, I constrain myself as well. If the next case should have such different facts that my political or policy preferences regarding the outcome are quite the opposite, I will be unable to indulge those preferences; I have committed myself to the governing principle. In the real world of appellate judging, it displays more judicial restraint to adopt such a course than to announce that, "on balance," we think the law was violated here -- leaving ourselves free to say in the next case that, "on balance," it was not. It is a commonplace that the one effective check upon arbitrary judges is criticism by the bar and the academy. But it is [very difficult] to demonstrate the inconsistency of two opinions based upon a "totality of the circumstances" test ... . Only by announcing rules do we hedge ourselves in.

Scalia, The Rule of Laws as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989)

Unknown said...


I am disinterested in leaving further discretion with the Courts, and am interested in leaving it with Legislatures. I would prefer courts to do the same. I know that's naive, but if legislating from the bench is a concern (as it is for me), then it is not a goal I wish to surrender to the inexorably growing power of the Court. Narrow rulings on point are better than broader rulings addressing questions or issues the Legislature never considered or, worse yet, considered but dismissed.

Unknown said...

P.S. And yes, I would agree Scalia's point is certainly the more practical one, given the horse has left the barn; but its utility from my perspective is only served as long as my side has a working majority of votes on the Court. That might be true now, but it won't always be.

Simon said...

You shouldn't be adopting legal principles based on whether they lead to outcomes you like or not. The problem with the Warren Court wasn't just results, but method; I don't like that my method of interpreting the Constitution leads to results like Johnson or Kyllo, but that's how it works out. It's the antithesis of law to follow a principle when it helps your cause and discard it when it doesn't.

Kirk Parker said...

I disagree with Brennan.

Facetiousness aside, the quote from Lithwick was fascinating (though sadly, also evidence when compared with here recent writings that Lithwick, too, is suffering the effects of chronic BDS.) I think the answer to the question, 'How can something so right feel so wrong?', is actually quite easy: Scalia's subject is Law, the hypothetical questioner is more concerned about outcomes and policy preferences.

Lou Wainwright said...

Also, as a non-lawyer, dissents are critical for making it clear to us that 'our position' was thought about during debate. In Raich it was much better to read Thomas's dissent, and at least be aware that the argument had been clearly made and rejected, than have to deal with the frustration of wondering if maybe the judges just didn't hear someone make the point that, "[Congress] can regulate virtually anything". I'd be much more cynical and disrespectful of the court if the dissents weren't written and published.

Unknown said...


"You shouldn't be adopting legal principles based on whether they lead to outcomes you like or not."

I'd agree, if it weren't for the fact I'd be the only one left not adopting legal principles based on whether they lead to outcomes I like or not. I am rather skeptical of the legal objectivity of judges and justices, so color me cynical about the virtue of adhering to the principle of “legal principles” deployed in the service of ideology, broadly speaking, rather than in the service of principle.

I was addressing the desirability of courts defer to legislatures; as a practical matter, that does not happen enough (and Lord knows, legislatures aren’t blameless, what with their delegation of authority to regulatory agencies and courts), hence my qualified agreement with the practicality with Scalia's statement rather than its desirability. Otherwise, your point is well taken.

Simon said...


Regarding court deference to legislatures, to some extent I can agree with that; my only problem with that is that at the federal level, the principle has an unfortunate tendancy to devour its own rationale.

Obviously the Courts should not defer to the legislature when the legislature is clearly acting beyond its powers, or is acting within its powers but in a manner which contravenes a Constitutionally-protected right. So what we're talking about here is the presumption of Constitutionality: that when there is at least an argument that an action is unconstitutional for one reason or the other, the Court should defer to Congress. The rationale for why that should be so is that when Congress passes an act, and the President signs it, the democratic branches of government assert that in their view, the constitutional argument against this act doesn't hold water, that the act is within their power. The problem is that when this principle is taken to extremes (as it was, for all intents and purposes, between Wickard and Lopez), the legislature gradually starts to get the idea into its head that it has plenary powers. It stops considering whether it has the Constitutional authority to pass an act, and thus, eliminates precisely the consideration that the presumption of Constitutionality is supposed to defer to.

Thus, I have no problem with courts deferring to the legislature (or even, per Chevron and Skidmore, executive agencies), but that deference must be conjoined with a robust level of review. I reject the rule of clear mistake. In short, I agree (as I usually do) with Scalia that "if Congress is going to take the attitude that it will do anything it can get away with and let the Supreme Court worry about the Constitution ... [in that cases] then perhaps th[e] presumption [of constitutionality] is unwarranted."

Ultimately, I think Marshall was right that it's "the province and duty of the judicial department to say what the law is," but to expound is not to manufacture, and judges should discover the law not make it anew. Marshall, I think, understood that pithy phrase to imply what Blackstone said outright: the judge should say what the law is, which is not "to pronounce a new law, but to maintain and expound the old one."

As to picking and choosing principles based on results, I'm not persuaded by the "they started it" argument. ;)

Unknown said...

Dissents are vanity. They're explicit expressions of what the law is not. They're not necessary either to the evolution of the law. If a precedent should be overturned or the law should otherwise change course, the arguments that compel that change can come from anywhere -- the fact they might have once been articulated by a judge in a dissenting opinion do not give those precedent-changing arguments any additional weight.

the Rising Jurist said...

Dissents are nice to have, especially for people who find the majority opinion to be especially awful. It helps those in the minority feel less insane.

And in close cases, the divide can be very instructive as to the weaknesses in the majority holding.

Hayek said...

I think I began my journey from socialism to conservatism as I began to absorb the wisdom of the Frankfurter and Harlan dissents to the Warren Court majority. They certainly had value to me.

Simon said...

I'd forgotten about this, but just ran across it -- Here's another answer as to the role of the dissenting opinion in terms of jurisprudential strategy:

"Butler adopted the broadest possible meaning of “new rules.” According to the majority, if a rule is “susceptible to debate among reasonable minds,” if a judge could reach a “reasonable contrary conclusion,” the rule is new. Just as Justice Brennan had feared in Teague, any time a rational judge could dissent, the rule is new. The Chief Justice dissented in Roberson, so of course, the rule announced there was new. As he stated in Butler, a judge in Roberson could have gone the other way without being “illogical or even grudging.” Indeed, in the future, with the present doctrinal structure in place, every justice will understand the power of a dissenting opinion: it irrefutably establishes that the rule of law articulated by the majority – even a majority of eight justices – is a new rule of law. The lone dissenter emerges victorious."

Althouse, Saying What Rights Are - In and Out of Context, 1991 Wis. L. Rev. 929, 961 (emphasis added).