“I Must Dissent.” Why?
The English judiciary has a tradition of seriatim opinions to decide a case in which each judge offers his or her own opinion.1 Chief Justice John Marshall, who broke from that practice “to adopt the precedent of a single opinion of the Court, prized unanimity and managed to achieve consensus to a degree unparalleled since his era.”2 His concern for unanimity is not surprising: “The [c]ourt as an institution was not yet established. Marshall undoubtedly wanted the [c]ourt to speak with one voice to send America a strong signal: the role of the [c]ourt is to have the last say. Thus, individual views had to yield to the will of the institution.”3
Nonetheless, there were both concurrences and dissents in the early decisions of the U.S. Supreme Court, reflecting that “freedom of individual expression was purposely institutionalized and continued by the [c]ourt, with a focus on assuming responsibility through concurrences and dissents in potentially significant or controversial decisions.”4 Simply put, “[t]he early [c]ourt established the philosophy that the credibility of the [c]ourt as a unit would be clarified and strengthened if individual justices articulated their own opinions.”5
Today many might question whether the increasing number of sharply split decisions of the court — some receding from long-standing precedent — instead detracts from the court’s credibility, making it appear that this country’s law depends on who is in political power at the time the decision is rendered. Which prompts the question — what is the value of a dissent, particularly in a case where the highest court in the jurisdiction has spoken? Why should scant judicial resources be devoted to writing an opinion that has no force or effect whatsoever in the case in which it is rendered, and that may in fact adversely affect the collegiality that is so very important to appellate judges, especially when a dissent levels a personal attack on the author of the majority opinion?6
In fact, there are many sound reasons why judges at all levels decide they must provide their dissenting views.7 The authors explore them below and also muse on the benefits and detriments of issuing dissenting opinions.
Is There a “Duty” to Dissent?
The duty of a judge has long been advanced as the basis for submitting an individual opinion. Thomas Jefferson believed that every justice of the Supreme Court should “[t]hrow himself in every case on God and his country; both will excuse him for error and value him for his honesty.”8 Justice Holmes, a great dissenter, referred to his “duty to express my dissent.”9 So, too, Justice Story asserted it was “an indispensable duty not to surrender my own judgment, because a great weight of opinion [is] against me, a weight which no one can feel more sensibly than myself.”10
In the end, it is the individual judge’s decision. Justice Ginsburg, in reflecting on dissents, observed that “with difficult cases on which reasonable minds may divide, sometimes intensely, one’s sense of [j]ustice may demand a departure from the majority’s view, expressed in a dissenting opinion.”11 Judge Wilson of the 11th Circuit Court of Appeals has explained that “My personal practice is to write a dissent only when I feel strongly about the result reached in the majority opinion. Such a practice is personal to each individual judge.”12
Although believing it would be unpopular, Judge Blue felt it was his duty to dissent in Miller v. State, 782 So. 2d 426, 433 (Fla. 2d DCA 2001), when he concluded the three young defendants had not been proven guilty of manslaughter, declaring that “our justice system requires more than suspicion to sustain a criminal conviction.” The effect of that dissent was the opposite of what he had anticipated. The Tampa Tribune wrote an editorial praising the dissent, and the state did not retry the case as permitted by the majority.13
When Have Judges Exercised a Duty to Dissent?
Law is not science or math. You cannot prove your answer. Consequently, most dissents are expressions of honest disagreements about what the law is in a particular case. Other times, dissents acknowledge the law applied in the majority opinion is the accepted law, but propose that it should not be. In fact, sometimes there is a close correlation between dissents and concurring opinions because judges who desire to explain what the law should be can do so in either a concurrence or dissent.14
Not surprisingly, social issues, such as discrimination cases and death penalty cases, bring out eloquent, forceful dissents, sometimes read from the bench. In fact, the term during which Justice Ginsburg orally announced from the bench a dissent in a partial-birth abortion case and a dissent in a Title VII case has been described as the term which will be remembered as the one in which she “’found [her] voice, and used it.’”15 Justice Barkett used her voice to dissent in Williams v. Attorney General of Alabama, 378 F.3d 1232, 1250 (11th Cir. 2004): “This case is not, as the majority’s demeaning and dismissive analysis suggests, about sex or about sexual devices. It is about the tradition of American citizens from the inception of our democracy to value the constitutionally protected right to be left alone in the privacy of their bedrooms and personal relationships.”
She proceeded to invoke the “now famous words” of Justice Brandeis’s dissent in Olmstead v. United States, 277 U.S. 438, 478 (1928), that when “[t]he makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. . . [t]hey conferred, as against the government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.”
Perhaps nothing stirs the passion more than disputes over presidential powers during wartime. Look at the dissents in Boumediene et al. v. Bush, 128 S. Ct. 2229 (2008). Justice Scalia all but called the justices in the majority traitors, declaring “America is at war with radical Islamists” and that the Court’s decision “will almost certainly cause more Americans to be killed.”16 He predicted the decision will have “devastating” and “disastrous consequences” and that “[t]he [n]ation will live to regret what the court has done today.”17 And lest anyone be in doubt of his view, he said the decision was driven by “an inflated notion of judicial supremacy,” a notion Chief Justice Roberts echoed in his separate dissent, where he expressed his fear that the Court’s “particularly egregious” “overreaching” would lead to “charges of judicial activism.”18
In 1954, there hardly was a more divisive and explosive issue than integration of our country’s public schools. Separate and unequal was exactly what many white people wanted in many parts of the country. It was then Chief Justice Warren’s fear of a strong dissenting voice and the resulting lack of respect for the Court’s decision that caused him to work to achieve the consensus decision in Brown v. Board of Education, 347 U.S. 483 (1954). In retrospect, it may have been the Court’s finest hour to eschew any dissenting voice in this seminal case.
One of the most splintered and divisive decisions in Florida jurisprudence arose on a prominent defendant’s appeal of his conviction of bribery and unlawful compensation for official behavior, an appeal that ended with a Judicial Qualifications Commission (JQC) investigation of the motivation of one of the appellate judges.19 In the initial en banc merits decision, the First District affirmed in part and reversed in part. Remarkably, there were nine special opinions, seven of which concurred in part and dissented in part. The court again went en banc to deny the motion for certification to the Florida Supreme Court. Two concurring opinions were filed; two opinions concurring in part and dissenting in part were filed; and one dissent was filed and joined in by another judge. One of the concurring judges on the motion for certification addressed one of the concurring/dissenting merit opinions, stating the judge felt constrained to do so because the other judges “have refused to revise their opinions to delete their accusations that this court has knowingly acted in a manner contrary to the requirements of law.”20 The filing of that judicial opinion led to charges by the JQC of conduct unbecoming a member of the judiciary.21
Do Dissents Affect the Majority’s Decision?
Sometimes it is hoped that seeing the reasoning of the dissent on paper will swing another judge over to that view. This is exactly what happened in Osceola Co. v. Best Diversified, Inc., 30 Fla. L. Weekly D1831 (Fla. 5th DCA 2005), opinion withdrawn on rehearing 936 So. 2d 55 (2006). Judge Pleus wrote the original opinion, with Judge Griffin writing a marvelously colorful and quotable dissent. She began saying, “I have been doing this job for a while, and I think this is the largest verdict based on the least evidence I have ever seen. In fact, it may be the least evidence to support a verdict of any size that I have ever seen.”22 On rehearing, Judge Sharp flipped to Judge Griffin’s point of view.23 Judge Pleus then dissented, complaining that panels should not flip on the merits on rehearing when nothing new had been added. Judge Sharp wrote a concurrence saying she had the right to change her mind.
Often there are purely pragmatic reasons for authoring a dissenting opinion. Justice Ginsburg has recited her experience that “there is nothing better than an impressive dissent to improve an opinion for the [c]ourt. A well reasoned dissent will lead the author of the majority opinion to refine and clarify her initial circulation.”24 This undoubtedly is why opinions sometimes address each other and rebut the points.25 Justice Ginsburg references the volume of unpublished opinions of Justice Brandeis, who would “suppress his dissent if the majority made ameliorating alterations or, even if he gained no accommodations, if he thought the [c]ourt’s opinion was of limited applications and unlikely to cause real harm in future cases.”26
A dissent also may be the result of an en banc decision reaching a contrary result to the panel decision. That was the case in State v. Colitto, 929 So. 2d 654, 658 (Fla. 2006), where Judge Farmer incorporated into his dissent the panel opinion he originally authored, stating he did so to explain “in conventional legal terms why I think these unfounded searches should not be used to convict either of these defendants.”
Sometimes the very fact there is a dissenting view demonstrates a flaw in the majority’s reasoning. How can a court conclude that the “plain language” of a statute requires it to be read in a manner different than dissenting justices read the statute?27 How can an interpretation of a statute be deemed “absurd” — one no reasonable person would have intended — when a dissenting judge on the same panel is perfectly willing to accept it?28 It would seem the “absurdity” doctrine only could be applied by a unanimous court, but it is not.
Indeed, one of our favorite dissents was issued by Ninth Circuit Court of Appeals judges in a case implicitly decided under that doctrine. In Amalgamated Transit Union Local 1309, AFL-CIO v. Laidlaw Transit Servs., Inc., 435 F.3d 1140, 1142-44 (9th Cir. 2006), the Ninth Circuit held that a statute saying that application for an appeal had to be made “not less than [seven] days after entry of the order” actually meant “not more than [seven] days after entry of the order.” In thereafter denying an en banc rehearing, the original panel briefly explained the court’s duty was to honor the legislative intent, “even where the plain language is unambiguous….” Six judges dissented from the denial of the en banc request, declaring that the role of the court “is to give affect to statutes as Congress enacts them,” and explaining the “real consequences to a court’s well-intentioned decision to fix Congress’s mistakes.”
An en banc decision in which the original panel decision never was released led to a sharply divided court in M.A.B. v. State, 957 So. 2d 1219 (Fla. 2d DCA), review granted, 962 So. 2d 337 (Fla. 2007), with respect to the requirements of a Miranda warning to a juvenile. The court was so divided that the result was a tie vote, mandating an affirmance of the conviction under Florida Rule of Appellate Procedure 9.331(a). In addition to a concurring opinion, four judges wrote dissenting opinions, sometimes joined in by other judges and sometimes not. Thereafter, the validity of the same Miranda warning came before a three-judge panel in Powell v. State, 969 So. 2d 1060 (Fla. 2d DCA 2007), which held the warning improperly failed to inform the defendant of his or her right to have counsel present during questioning. The panel majority, thus, effectively adopted the dissents’ position in M.A.B. Thereafter, the Second District held the issue has been decided and it is bound to follow Powell’s precedent, thus making the previous dissenting view the law in that district.29
Then District Judge Peggy Quince had to wait until she was elevated to the Florida Supreme Court to have her dissent in Lopez v. Vilches, 734 So. 2d 1095, 1098 (Fla. 2d DCA 1999), become the law of Florida. Five years after she issued that dissent, her dissenting view was adopted by the high court, which specifically relied on her earlier dissent.30
Even without joining the court that has the power to adopt a lower court judge’s dissent, such dissents may carry the day with the higher court. There is, then, good reason for an intermediate judge to propound the dissenting viewpoint. That appears to have been the purpose behind Judge Altenbernd’s dissent in Kozel v. Ostendorf, 603 So. 2d 602 (Fla. 2d DCA 1992), where he proposed a set of five factors to be considered before a court dismisses a complaint with prejudice as a result of an attorney’s misconduct. The Florida Supreme Court later adopted the “set of factors set forth in large part by Judge Altenbernd” on that issue.31
Furthermore, the issue may be one which inevitably will arise again, and the dissenting justice may be laying out a framework for changing the law. It ultimately may become the law, although possibly too late to help the losing party in the original case.32 Can anything be harder on an appellate advocate? Which raises the question: Shouldn’t a dissent be allowed to be a basis for a party to seek review by the Florida Supreme Court, so it becomes the law in time to help that litigant?
Why Bother With a Dissent in a Court of Last Appeal?
So, why a dissent in a decision by the court of last appeal? Sometimes the dissent is aimed squarely at the legislative branch, in hopes it will change the law at issue. That is exactly what the dissenting justices did in Delgado v. State, 776 So. 2d 233, 242 (Fla. 2000), when they explicitly urged the Florida Legislature “to immediately review and plainly express whether it accepts the majority’s construction of this statute.” Accepting that invitation, the legislature enacted F.S. §810.015 (2001), to nullify the court’s decision in Delgado.
Sometimes the dissent is aimed at a future court. Chief Justice Hughes described it as “an appeal. . . 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.”33 Justice Scalia observed that “[w]hen history demonstrates that one of the Court’s decisions has been a truly horrendous mistake, it is comforting. . . to look back and realize that at least some of the justices saw the danger clearly and gave voice, often eloquent voices, to their concern.”34 For this reason, Scalia posits that such dissents “augment rather then diminish the prestige of the Court.”
Undoubtedly, the most famous dissent to become the law is Judge Harlan’s dissent in Plessy v. Ferguson, 163 U.S. 537, 552-64 (1896). He said there that “[o]ur constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.” He went on to predict, quite accurately, that “the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case.” That dissent certainly is his legacy to our country’s jurisprudence, and it became the law of this country in Brown v. Board of Education, 347 U.S. 483 (1954).
Although Judge Harlan’s statement that the “Constitution is color-blind” was rejected in affirmative action cases such as Univ. of Calif. Regents v. Bakke, 438 U.S. 265 (1978), it was seized upon by Justice Thomas in his concurring opinion in Parents Involved in Community Schools v. Seattle School District, 127 S. Ct. 2738, 2782 (2007). He did so in responding to the dissent in that case:
Most of the dissent’s criticisms of today’s result can be traced to its rejection of the color-blind Constitution. The dissent attempts to marginalize the notion of a color-blind Constitution by consigning it to me and [m]embers of today’s plurality. But I am quite comfortable in the company I keep. My view of the Constitution is Justice Harlan’s view in Plessy: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” (Internal citations omitted.)
Justice Thomas also remarked on the force that a dissent can have for future advocates, noting that this view of the Constitution was the rallying cry for the lawyers who litigated Brown.35
Justice Blackmun’s dissent in Bowers v. Hardwick, 478 U.S. 186 (1986), has been said to have had the same enervating effect: “He had me read to him from the Times the whole of Justice Blackmun’s…dissent. He talked about it for days whenever one of his lawyer friends would call. [He] was the one who made me understand that a great dissent could over the course of time acquire the moral force to alter bigoted laws that seemed impregnable.”36 Simply put, a dissent can give hope that the law ultimately will be otherwise.
Since our first year in law school, we have been told that dissenting opinions have no persuasive effect. However, as can be seen, there is very good reason to question that notion. Dissents can expose disagreements in the law and may even propose better law. A dissent may change not only the minds of fellow judges on the panel, but also the minds of future judges. When the use of a dissent is limited to when it is most meaningful, what is today’s dissent could be tomorrow’s majority. And that is why a judge sometime has to say, “I must dissent.”
1 Justice Ruth Bader Ginsburg, The 20th Annual Leo & Barry Eizenstat Memorial Lecture: The Role of Dissenting Opinions (October 21, 2007) (transcript available at www.supremecourtus.gov/publicinfo/speeches/sp_10-21-07.html). Justice Ginsburg explains that the English judiciary’s tradition of opinions is unlike the practice of other European countries, such as France, which “issue a collective judgment, written in an impersonal style. The author of the judgment is neither named nor otherwise identifiable. Disagreement, if it exists, is not disclosed.”
2 Michael Mello, Adhering to Our Views: Justices Brennan and Marshall and the Relentless Dissent to Death as a Punishment, 22 Fla. St. U. L. Rev. 591, 606 (1995).
4 Id. at 610.
6 For example, Justice Scalia, known for his scathing dissents, once accused Justice Sandra Day O’Connor of holding “irrational” views that cannot be taken seriously. Webster v. Reproductive Health Services, 492 U.S. 490, 537 n* (1989) (Scalia, J., concurring in part). Of course, even when he is on the same side as the majority opinion, he can be biting, such as when he accused Chief Justice Roberts of “faux judicial restraint.” Fed. Election Comm’n v. Wisc. Right to Life, Inc., 127 S.Ct. 2652, 2683 n. 7 (2007) (Scalia, J., concurring in part).
7 A dissenting judge may not always provide explanation for the dissent. Or, a judge may release a “dubitante” opinion, which is “a notation expressing serious doubt about the case.” Harry L. Anstead et al., The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. 431, 461 (2005). Because of their limited use, it is unclear whether a dubitante opinion should be treated as a concurrence or dissent. Id. at 462.
8 Mello, Adhering to Our Views: Justices Brennan and Marshall and the Relentless Dissent to Death as a Punishment, 22 Fla. St. U. L. Rev. at 606-07 (1995).
9 Lochner v. New York, 198 U.S. 45, 74 (1905) (Holmes, J., dissenting).
10 The Nereide, 13 U.S. (9 Cranch) 388, 455 (1815).
11 Ginsburg, The 20th Annual Leo & Barry Eizenstat Memorial Lecture: The Role of Dissenting Opinions (October 21, 2007).
12 Charles R. Wilson, How Opinions Are Developed in the United States Court of Appeals for the Eleventh Circuit, 32 Stetson L. Rev. 247, 267 (2003).
13 Interview of John R. Blue, former Chief Judge of the Second District Court of Appeal, of counsel at Carlton Fields, P.A. (June 28, 2008).
14 Even when they agree with the result, judges often write concurring opinions to state different or additional reasons for their vote. See, for a funny example, Funny Cide Ventures, LLC v. Miami Herald Pub. Co., 955 So. 2d 1241, 1243-44 (Fla. 4th DCA 2007), in which the concurring judge explains in a “foreword” his concerns about judicial opinion writing that is “dreary and tedious,” and relates his determination to “write some opinions in styles and tones calculated to make legal reasoning clearer for those without law degrees.” He then provides his opinion, in which the other judges would not join.
15 Ginsburg, The 20th Annual Leo & Barry Eizenstat Memorial Lecture: The Role of Dissenting Opinions (October 21, 2007).
16 Boumediene et al. v. Bush, 128 S. Ct. at 2294.
17 Id. at 2294, 2307.
18 Id. at 2282-83, 2302.
19 Childers v. State, 936 So. 2d 585 (Fla. 1st DCA 2006) (en banc merits decision); 936 So. 2d 619 (en banc decision denying motion for certification).
20 Id. at 622.
21 Inquiry Concerning a Judge No. 06-249, Re: Judge Miachel E. Allen, www.floridasupremecourt.org/pub_info/summaries/briefs/07/07-774/Filed_05-03-2007_NoticeFormalCharges.pdf.
22 Original opinion available at www.5dca.org/Opinions/Opin2005/072505/5D04-216.op.pdf.
23 Co. v. Best Diversified, Inc., 936 So. 2d 55.
24 Ginsburg, The 20th Annual Leo & Barry Eizenstat Memorial Lecture: The Role of Dissenting Opinions (October 21, 2007).
25 See, e.g., Bd. of County Comm’rs, Wabaunsee County, Kan v. Umbehr, 518 U.S. 668 (1996); Delgado v. State, 776 So. 2d 233 (Fla. 2000); Malu v. Security Nat’l Ins. Co., 898 So. 2d 69 (Fla. 2005).
26 Ginsburg, The 20th Annual Leo & Barry Eizenstat Memorial Lecture: The Role of Dissenting Opinions (October 21, 2007).
27 See, e.g., State v. Ruiz, 863 So. 2d 1205 (Fla. 2003).
28 See, e.g., Maddox. v. State, 923 So. 2d 442 (Fla. 2006).
29 Seward v. State, 973 So. 2d 578, 579 (Fla. 2d D.C.A. 2008).
30 Taylor v. School Board of Brevard County, 888 So. 2d 1 (Fla. 2004).
31 Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993).
32 Pirelli Armstrong Tire Corp. v. Jensen, 752 So. 2d 1275, 1277-79 (Fla. 2d D.C.A. 2000) (Casanueva, J., concurring in part, dissenting in part) adopted by Sarkis v. Allstate Ins. Co., 863 So. 2d 210 (Fla. 2003).
33 Ginsburg, The 20th Annual Leo & Barry Eizenstat Memorial Lecture: The Role of Dissenting Opinions (October 21, 2007).
35 Parents Involved in Community Schools v. Seattle School District, 127 S. Ct. at 2782-83 (citing Judge Motley, In Memoriam: Honorable Thurgood Marshall, Proceedings of the Bar and Officers of the Supreme Court of the United States, X (1993) (“Marshall had a ‘Bible’ to which he turned during his most depressed moments. The ‘Bible’ would be known in the legal community as the first Mr. Justice Harlan’s dissent in Plessy v. Ferguson.”)).
36 Mello, Adhering to Our Views: Justices Brennan and Marshall and the Relentless Dissent to Death as a Punishment, 22 Fla. St. U. L. Rev. at 592 (1995) (quoting Paul Monette, West of Yesterday, East of Summer: Collected Poems xvii (1994)).
Sylvia H. Walbolt received her J.D. degree from the University of Florida. She has practiced with Carlton Fields, P.A., in Tampa since 1963, where she previously has served as chair of the board for the firm and chair of its appellate practice and trial support group.
Stephanie C. Zimmerman received her J.D. degree from Stetson University College of Law. She is an associate with Carlton Fields, P.A., in St. Petersburg in its appellate practice and trial support group.
This column is submitted on behalf of the Appellate Practice Section, Siobhan Helene Shea, chair, and Tracy R. Gunn, Kristin A. Norse, and Heather M. Lammers, editors.