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Dissents: Who, when, why and how

MINNEAPOLIS, Minn.  — I have always been intrigued when a judge has made the decision to write separately and include that writing with the majority decision — who was the judge, when was the opinion written, why did he or she write separately, and how did the judge go about trying to achieve the objective?

By definition, dissents and concurrences are not precedential. Yet they can provide fascinating perspectives into the judge who decided to write separately, the circumstances of the case, and the manner and direction in which the law might eventually evolve. An apt illustration can be found in 1951 when South Carolina’s courageous federal judge, J. Waties Waring, declared that “segregation is per se inequality” in his dissent in Briggs v. Elliott — a case that was eventually consolidated into Brown v. Board of Education, which was decided by the U.S. Supreme Court three years later.

Justice William Brennan called dissenters “Prophets with Honor.” He said the “most enduring dissents” are those that “reveal the perceived congruence between the Constitution and the ‘evolving standards of decency that mark the progress of a maturing society,’ and that seek to sow seeds for future harvest. These are the dissents that soar with passion and ring with rhetoric. These are the dissents that, at their best, straddle the worlds of literature and law.”

The impact of solidarity

On the other hand, there are those who “dissent” from such glorious descriptions of dissenting opinions. Judge Learned Hand complained that a dissenting opinion “cancels the impact of monolithic solidarity on which the authority of a bench of judges so largely depends.”

Chief Justice William Howard Taft so abhorred dissents that he counseled President Warren Harding against nominating judges who had displayed a predisposition to dissent, such as New York Court of Appeals Judge Cuthbert Pound, of whom Chief Justice Taft wrote:

“[Pound] has a marked trait as a Judge that would make him a very doubtful use on our Bench. He is a great dissenter. He was a professor of law in Cornell for five or ten years, and he evidently thinks it is more important that he should ventilate his individual views than that the Court should be consistent and by team work should give solidarity and punch to what it decides.”

It bears noting that Chief Justice Taft not only “talked the talk” but he also “walked the walk.” For example, in Wisconsin v. Illinois, he had worked an entire summer on an opinion in which he sought to develop a theory of law about which he felt very strongly. However, for the sake of unanimity, he was willing to gut the analysis:

“I worked all summer on the constitutional part of the opinion … and sacrificed myself completely by an examination of the briefs and the authorities on the subject, and I parted with it as a child that I was glad to father, if it needed any fathering, and it is a real sacrifice of my personal preference. But it is the duty of us all to control our personal preferences to the main object of the Court.

Majority opinions v. dissents, concurrences

As we know, appellate courts perform their work in groups — typically as three judge panels or en banc courts — as opposed to being individual decision-makers like trial judges. And, with the exception of the Wisconsin Supreme Court, appellate courts tend to be collegial, collaborative and cooperative.

This certainly seems to be true with respect to the Minnesota Court of Appeals and the United States Court of Appeals for the 8th Circuit — as evidenced by the fact that each of these courts tend to issue majority opinions that are typically unanimous.

In both of these courts, the authoring judge is assigned, and the other members of the panel collaborate with the author by providing their input on the draft opinion. Correspondingly, the authoring judge endeavors to accommodate the input from his or her colleagues.

There are occasions when there are competing viewpoints as to how a case should be decided — and in those instances, there may be two judges writing opinions (the draft opinion of the tentative majority and the draft dissent) that advocate for different outcomes with the aim of convincing colleagues to join them to form the ultimate majority. From an institutional and administrative standpoint, that may be the most important function for drafting a separate opinion; namely, to challenge the tentative majority’s analysis and proposed disposition of the case. Regardless of the outcome, this internal function of dissents strengthens the ultimate decision.

Thus, drafting a separate opinion for purposes of advocating a different point a view, and using that dissent to convince judicial colleagues to adopt that point of view, is obviously very different and entirely distinct from the subsequent and ultimate decision of whether to actually publish that separate opinion as a dissent or concurrence to the majority’s opinion.

To publish or not

Justice Louis Brandeis was famous for writing strong dissents that he circulated to his colleagues, and these dissents profoundly influenced the shaping of many majority opinions that were eventually filed by the Court. Yet while still in disagreement with the majority, Justice Brandeis often made the decision not to publish many of these dissents. Indeed, this occurred frequently enough to enable Alexander Bickel to compile an entire book titled “The Unpublished Opinions of Mr. Justice Brandeis.”

The decision to publish a separate opinion is a uniquely individual decision — standing in sharp contrast to the cooperative process of collaborating on a majority decision. And it also appears that writing a separate opinion — whether in concurrence or dissent — is more fun than writing for the majority. As Judge Patricia Wald has observed, writing of a dissent is “liberating” because “no other judge need agree or even be consulted.”

Five years ago, Justice Ruth Bader Ginsburg published an article in the Minnesota Law Review titled, “The Role of Dissenting Opinions,” in which she wrote: “I agree that a Justice, contemplating a publication of a separate writing, should always ask herself: Is this dissent or concurrence really necessary?” Justice Ginsberg went on to say: “[A]lthough I appreciate the value of unanimous opinions, I will continue to speak in dissent when important matters are at stake. I stress important matters because I try to follow Justice Brandeis’ counsel. He cautioned that ‘in most matters it more important that the applicable rule of law be settled than that it be settled right.’”

Tom Boyd is a shareholder with Winthrop & Weinstine, P.A. in Minneapolis.

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