"I Must Dissent." Why? he English judiciary has ticularly - PDF document

APPELLATE PRACTICE by Sylvia H. Walbolt and Stephanie C. Zimmerman "I Must Dissent." Why? he English judiciary has ticularly in a case where the highest senting opinion. Judge Wilson of a tradition of seriatim opin- court in the jurisdiction has spoken? the llth Circuit Court of Appeals has ions to decide a case in which Why should scant judicial resources explained that "My personal practice each judge offers his or her be devoted to writing an opinion that is to write a dissent only when feel own opinion. Chief Justice John Mar- has no force or effect whatsoever in strongly about the result reached in shall, who broke from that practice "to the case in which it is rendered, and the majority opinion. Such a prac- adopt the precedent of a single opinion that may in fact adversely affect the tice is personal to each individual of the Court, prized unanimity and collegiality that is so very important judge. managed to achieve consensus to to appellate judges, especially when Although believing it would be a degree unparalleled since his era."-' a dissent levels a personal attack on unpopular, Judge Blue felt it was his His concern for unanimity is not sur- the author of the majority opinion? duty to dissent in Miller v. State, 782 prising: "The [c]ourt as an institution In fact, there are many sound rea- So. 2d 426, 433 IFla. 2d DCA 20011, was not yet established. Marshall sons why judges at all levels decide when he concluded the three young undoubtedly wanted the [c]ourt to they must provide their dissenting defendants had not been proven guilty speak with one voice to send America views.: The authors explore them of manslaughter, declaring that "our a strong signal: the role of the Ic]ourt below and also muse on the benefits justice system requires more than is to have the last say. Thus, individual and detriments of issuing dissenting suspicion to sustain a criminal convic- views had to yield to the will of the opinions. tion." The effect of that dissent was the institution.':• opposite of what he had anticipated. Nonetheless, there were both con- Is There a "Duty" to Dissent? The Tampa Tribune wrote an editorial currences and dissents in the early The duty of a judge has long been praising the dissent, and the state did decisions of the U.S. Supreme Court, advanced as the basis for submitting not retry the case as permitted by the reflecting that "freedom of individual an individual opinion. Thomas Jef- majority. expression was purposely institution- ferson believed that every justice of alized and continued by the [c]ourt, the Supreme Court should "lt]hrow When Have Judges Exercised a with a focus on assuming respon- himself in every case on God and his Duty to Dissent? sibility through concurrences and country; both will excuse him for er- Law is not science or math. You can- dissents in potentially significant or ror and value him for his honesty."" not prove your answer. Consequently, controversial decisions. Simply put, Justice Holmes, a great dissenter, most dissents are expressions of hon- "It]he early [c]ourt established the referred to his "duty to express my dis- est disagreements about what the law philosophy that the credibility of the So, too, Justice Story asserted sent. is in a particular case. Other times, [c]ourt as a unit would be clarified and it was "an indispensable duty not to dissents acknowledge the law applied strengthened if individual justices surrender my own judgment, because in the majority opinion is the accepted articulated their own opinions. a great weight of opinion [is] against law, but propose that it should not Today many might question wheth- a weight which no one can feel be. In fact, sometimes there is a close me, er the increasing number of sharply more sensibly than mysel£ "1'' correlation between dissents and con- split decisions of the court In the end, it is the individual curring opinions because judges who some re- ceding from long-standing precedent judge's decision. Justice Ginsburg, in desire to explain what the law should instead detracts from the court's reflecting on dissents, observed that be can do so in either a concurrence credibility, making it appear that this "with difficult cases on which reason- or dissent. country's law depends on who is in po- able minds may divide, sometimes Not surprisingly, social issues, such litical power at the time the decision is intensely, one's sense of [j]ustice as discrimination cases and death rendered. Which prompts the question may demand a departure from the penalty cases, bring out eloquent, what is the value of a dissent, par- majority's view, expressed in a dis- forceful dissents, sometimes read 36 THE FLORIDA BAR JOURNAL/NOVEMBER 2008

from the bench. In fact, the term dur- the right to be let alone integration of our country's public the most ing which Justice Ginsburg orally comprehensive of rights and the right schools. Separate and unequal was announced from the bench a dissent most valued by civilized men." exactly what many white people in a partial-birth abortion case and a Perhaps nothing stirs the passion wanted in many parts of the country. dissent in a Title VII case has been more than disputes over presidential It was then Chief Justice Warren's described as the term which will be powers during wartime. Look at the fear of a strong dissenting voice and remembered as the one in which she v. Bush, the resulting lack of respect for the dissents in Boumediene et al. "'found [her] voice, and used it. 128 S. Ct. 2229 t2008). Justice Scalia Court's decision that caused him to Justice Barkett used her voice to dis- all but called the justices in the mao work to achieve the consensus deci- sent in Williams v. Attorney General jority traitors, declaring "America is sion in Brown v. Board of Education, ofAlabama, 378 F.3d 1232, 1250 I1 lth at war with radical Islamists" and 347 U.S. 483/1954). In retrospect, it Cir. 2004k "This case is not, as the that the Court's decision "will almost may have been the Court's finest hour majority's demeaning and dismissive to eschew any dissenting voice in this certainly cause more Americans to analysis suggests, about sex or about be killed. He predicted the decision seminal case. One of the most splintered and sexual devices. It is about the tradi- will have "devastating" and "disas- tion of American citizens from the in- trous consequences" and that "It]he divisive decisions in Florida ju- ception of our democracy to value the [n]ation will live to regret what the risprudence arose a prominent on constitutionally protected right to be court has done today. "1: And lest any- defendant's appeal of his conviction left alone in the privacy of their bed- one be in doubt of his view, he said the of bribery and unlawful compensation rooms and personal relationships." decision was driven by "an inflated for official behavior, an appeal that She proceeded to invoke the "now notion of judicial supremacy," a notion ended with a Judicial Qualifications famous words" of Justice Brandeis's Commission IJQC) investigation of Chief Justice Roberts echoed in his dissent in Olmstead v. United States, separate dissent, where he expressed the motivation of one of the appellate 277 U.S. 438, 478 (19281, that when his fear that the Court's "particularly judges. In the initial en banc merits "It]he makers of our Constitution un- egregious" "overreaching" would lead decision, the First District affirmed dertook to secure conditions favorable to "charges of judicial activism. in part and reversed in part. Remark- to the pursuit of happiness... It]hey In 1954, there hardly was ably, there were nine special opinions, a more conferred, as against the government, divisive and explosive issue than seven of which concurred in part and just 5 minutes, you may save up to In professional liability policy. 15% Get a quote today and see how much you can save. F• Get a premium estimate during your first phone call. r• Get a customized quote usually within 6 hours. r• Get your CNA policy at your desk usually business day. within GilsbarPRO is the exclusive administrator for the CNA Lawyers Professional Liability Program in the State o{ Florida. GILSBARPRO Professional Liability Insurance for Attorneys Pformat for •or gu,dance Drc(ess O•f,¢e CoDyr ght r,.•ts THE FLORIDA BAR JOURNAL/NOVEMBER 2008 37