The Florida Bar

Florida Bar Journal

Dissenting Opinions


I enjoyed Iman Zekri’s article on the role and impact of dissenting opinions (“Respectfully Dissenting: How Dissenting Opinions Shape the Law and Impact Collegiality Among Judges,” September/October). Perhaps the greatest benefit of dissenting opinions is public accountability. The only visible work of an appellate court is oral argument and the final decision and explanation. Dissenting opinions make the internal debate visible. That potential visibility itself can affect the majority.

New justices inevitably arrive and find 3-3 splits with opinions written awaiting a decision on which will be the majority opinion and which the dissenting one. Opinions written as a majority opinion may suddenly become a dissent. And it’s not unusual for a dissenting opinion to pull votes away from the majority and become the majority opinion instead.

Perhaps the most significant example of this vote-changing effect is a dissenting opinion that was never released. The Florida Supreme Court was preparing a 6-1 decision denying special admission to the Bar for Virgil Hawkins, who had fought for years to be the first black person admitted to the University of Florida law school but was repeatedly pushed back by the Supreme Court’s reaffirmance of segregation. Justice Joseph Hatchett, the only black justice, wrote a searing dissenting opinion that highlighted the court’s support for segregation and the leading role Justice B.K. Roberts had played in prolonging segregation.

My book, The Florida Supreme Court, 1972-1987: A Journey Toward Justice, recounts what happened next. Roberts, in his final weeks on the court and concerned about his legacy, came into the justices’ private conference after reading Hatchett’s draft dissent and declared he had changed his mind and would vote to admit Hawkins. The other justices joined him. The compromise opinion released Nov. 12, 1976, deemed it “unnecessary to recite” the court’s past obstruction and offered no penitence, but the mere internal circulation of Hatchett’s dissent had a powerful and lasting impact on the case as well as the court’s reputation.

Although such drama is rare, dissents give us as citizens a better understanding of how the personalities, philosophies, intellects, and experiences of each justice shape the law of Florida. And they help the judges and justices remember that they are accountable to all of us, and to history, for what they decide.

Neil Skene, Tallahassee