Florida Bar Journal

Respectfully Dissenting: How Dissenting Opinions Shape the Law and Impact Collegiality Among Judges

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An appellate court issues its opinion in a highly contested case. The winning and losing attorneys read the well-reasoned majority opinion clarifying the current state of the law. They finish reading the majority’s conclusion but realize the decision does not end there. One judge dissented, with an opinion even longer than the majority’s opinion. The appellate attorneys read the dissent, and suddenly, each does not feel as firm in his or her conviction that the law as decided by the majority is now settled. Was the dissenting judge correct in choosing to author a dissent? Should attorneys, scholars, and other courts consider the dissent when faced with similar factual circumstances? Will this dissent persuade a future or higher court? How did the dissent impact collegiality among judges on the court?

This article discusses the growing use of dissents with a focus on dissenting opinions from Florida state court decisions. Because dissents preclude a court from speaking with one voice and may adversely affect collegiality on a court, dissents have been criticized as “useless,”^[1] “undesirable,”^[2] and “subversive.”^[3] The costs and benefits associated with dissents are unresolved — some view dissents as meaningful contributions to the law, while others maintain that dissents merely add confusion to the law.^[4] This article presents divergent approaches that Florida judges and justices have used in writing dissents and reviews various ways that dissenting opinions influence the law. Evident from this discussion is that dissenting opinions are integral to the law’s development, and if judges do not dissent, the law does not develop efficiently. This article concludes with a recommended list of questions for judges to consider in determining whether authoring a dissent is beneficial in any given case and further suggests a golden rule that dissenting judges can abide by to preserve collegiality on their court.

The Duty to Dissent

One Florida Supreme Court justice remarked that in many cases, the utility of a dissenting opinion is “extremely doubtful,” and it may produce “harmful results” attributable to “differences of opinion” among the members of a court.^[5] For these reasons, when a judge prepares a dissenting opinion, he or she generally does so with the belief that because the law is a quest for truth and encompasses sound reasoning, the view articulated in the dissent will sooner or later prevail.^[6] Where significant and meaningful disagreements exist, judges have a responsibility to use their individual intellects to scrutinize and evaluate the issues that come before their court.^[7]

A dissent necessarily rests on some information, reasoning, or legal analysis that was rejected by the majority.^[8] Issuing a dissenting opinion is the “only judicial task of lasting import” that an individual judge or justice can “embark upon alone.”^[9] However, dissents are not legally binding authority. One Wisconsin court bluntly stated: “A dissent is what the law is not.”^[10] The South Carolina Supreme Court has explained that although a dissenting opinion is useful in shedding light on a case, it is not controlling law.^[11] But if these courts and commentators are correct, and a dissenting opinion merely shows what the law is not, then why do judges invest their time and effort into authoring dissenting opinions?

Functions of Dissenting Opinions

Dissenting opinions have several functions. First, a judge may write a dissent to persuade the majority, and the dissenting opinion may ultimately become the majority opinion.^[12] Second, a dissent can improve the majority opinion by pointing out the majority’s mistakes either in its description of the facts, the law, or in its reasoning.^[13] Third, a dissent can keep the majority honest by forcing the majority to acknowledge unfavorable facts.^[14] Fourth, a dissent can provide the losing party with an acknowledgment that their arguments were heard and understood.^[15] Fifth, a dissent can alert the legislature to take action on an issue.^[16] Finally, a dissent can appeal to a future court to adopt its view.^[17] While the preceding list is not exhaustive, it sets out the major purposes of dissenting opinions.

Although some view these functions as beneficial because they preserve individual judges’ independence and protect the integrity of the decision-making process by holding the majority accountable,^[18] others view these same functions as detrimental.^[19] Criticisms of dissents generally include that they make the law less certain, undermine the institutional legitimacy of a court by preventing it from speaking with one voice, and reduce efficiency by requiring courts to expend more resources and time — both to craft the dissenting opinion and, if the majority so decides, to respond to the arguments raised by the dissent.^[20]

Despite these misgivings, the utilization of dissents has increased significantly over time. “Between 1789 to 1928, dissents and concurrences were filed in only 15% of all cases decided by the Supreme Court.”^[21] From 1930 to 1957, that figure nearly tripled, with dissents issued in 42% of Supreme Court decisions.^[22] “In October Term 1992, dissents alone were filed in 71% of all cases decided by the Court.”^[23] Over time, courts grew to welcome the individual judicial voice, and many judges and justices no longer feel restrained in dissenting as they historically did.^[24] Justice Ruth Bader Ginsburg even has a famous “dissent collar” that she wears when the Court announces a decision with which she disagrees.^[25] As discussed in the next section, judges and practitioners have differing viewpoints as to whether dissents are useful, and different judges take distinctly divergent approaches to authoring a dissenting opinion.

The Value of Consensus: A Look at the Schiavo Case

Many reasons are advanced for limiting dissents and encouraging consensus. When a court speaks with a unified voice, it suggests that the judges have reached the “correct” decision, whereas public disagreement on a court can undermine the legitimacy of a decision and judicial power.^[26] There is no doubt that unanimity has value, and this principle is demonstrated by Bush v. Schiavo, 885 So. 2d 321 (Fla. 2004), which is one of the most well-known cases in the right-to-die debate.^[27] In a 7-0 decision, the Florida Supreme Court found consensus amid chaos as the public watched the controversial legal battle unfold surrounding Theresa Schiavo, a young Florida woman in a persistent vegetative state.^[28]

Theresa’s husband argued that his wife would not want to remain on life support, but her parents disagreed and fought to keep her alive.^[29] After a lengthy battle in court, including multiple appeals, Theresa’s nutrition and hydration tube was removed.^[30] Six days after the removal, the Florida Legislature enacted a law permitting the governor to stay the withholding of nutrition and hydration for a patient under certain circumstances.^[31] The governor subsequently issued an executive order to stay the withholding of nutrition and hydration from Theresa, and Theresa’s nutrition and hydration tube was reinserted.^[32] Theresa’s husband brought an action for declaratory judgment, and the trial court entered final summary judgment in his favor, finding the law unconstitutional.^[33]

On review, a unanimous Florida Supreme Court agreed with Theresa’s husband and the trial court, and overturned “Terri’s Law”^[34] as unconstitutional under the separation-of-powers doctrine.^[35] The court held that the law was unconstitutional as applied because it encroached on judicial authority and unconstitutional on its face as an improper delegation of legislative authority.^[36] The law effectively permitted the governor to reverse a final judgment rendered on an issue that was fully litigated, which plainly constituted an unconstitutional encroachment on the power of the independent judiciary.^[37] It was an emotionally fraught decision for the court, and the opinion authored by Justice Pariente acknowledged that the “tragic circumstances” of the case made it particularly “difficult to put emotions aside and focus solely on the legal issue,” but the justices ultimately agreed on the law and remarked that “the Constitution always must prevail over emotion.”^[38]

In defending against an overt and intentional attack on the independence of the judiciary by the legislative and executive branches, the court issued its unanimous opinion in the highly publicized Schiavo case amid intense public debate and political activism. There is something uniquely powerful about seven members of a state’s highest court reaching a unanimous decision, particularly in such a controversial case, and this formidable effect of consensus is what critics of dissents seek to protect. Critics maintain that unanimity reinforces public legitimacy of the court.^[39] When the court speaks with one voice, the court is legitimized as an institution of law, not of men.^[40] However, when a dissenting opinion is filed, it reveals open disagreement within the court.^[41] Practitioners, judges, and scholars surely look differently at a decision containing a dissent than at a unanimous decision.

Dissents That Succeeded in Changing the Law

• Voluntary Policy Changes — Although a dissent signals a lack of consensus by its very definition,^[42] dissents shape the law in many ways, not only by contributing to later reversals, but also by bringing about changes in policy. Even when a majority view controls, a dissent can lead to a reconsideration or voluntary change of policy. For instance, in Florida Board of Bar Examiners Re: Applicant, 443 So. 2d 71 (Fla. 1983), the Florida Supreme Court considered the applicant’s challenges to the state bar application’s mental-health question^[43] and authorization and release form under the right to privacy and due process.^[44] In a 6-1 decision, the court rejected the applicant’s challenges and found the board’s actions did not violate the Florida or U.S. constitutions.^[45] The dissenting justice took issue with the majority’s assertion that the means employed by the board could not be narrowed without diminishing the board’s effectiveness in carrying out its responsibilities.^[46]

Dissenting Justice James Adkins argued that the authorization and release form and mental-health question were overbroad.^[47] Adkins’ dissent also recommended a solution to fix the unnecessary intrusion: “I feel there must be some time frame incorporated in question 28(b) and the authorization of the release of medical records.”^[48] Although the majority held that the board is permitted to continue asking the same question of applicants seeking admission into The Florida Bar, the question was subsequently altered.

Today, applicants are asked: “Within the past [five] years have you been diagnosed with, suffered from or been treated for a mental illness…?”^[49] Thus, a five-year time limitation on the information sought was added to the mental-health question.^[50] Adkins’ dissent identified a valid problem and recommended a solution, and the overly broad scope of the question was later remedied with a time frame just as his dissent suggested.^[51] Consequently, even though the majority held that the board did not need to modify the question, the board ultimately followed the dissent in the case. By raising legitimate policy concerns and making a pragmatic suggestion, the dissent, although not binding, shaped the law by persuading a party to voluntarily take a recommended course of action.

• A Higher Court Citing a Lower Court Dissent — Most notably, dissents seek to and sometimes succeed in generating substantive changes in the law. A dissenting judge knows that he or she prevailed when a higher court’s subsequent opinion cites his or her dissent, making it part of the law. Then Judge (later Justice) Peggy Quince dissented in Lopez v. Vilches, 734 So. 2d 1095, 1098 (Fla. 2d DCA 1999) (Quince, J., dissenting), a case involving an employee’s claim for damages. In Lopez, the appellees were responsible for maintaining a fleet of vehicles used by several funeral homes.^[52] The appellant, a funeral home employee, was injured while driving one of the vehicles when it malfunctioned.^[53]

Although Florida law provides that workers’ compensation is the sole remedy when an employee is injured on the job, the unrelated-works exception to workers’ compensation immunity applies to cases involving employees of the same employer who are assigned to unrelated works.^[54] Because of the distinct physical location and distinct purpose of the two parties’ work, the Florida Second District Court of Appeal held that the undisputed facts do not preclude a finding that the unrelated-works exception applies and the lower court erred in granting summary judgment in favor of the appellees.^[55] Judge Quince’s dissent maintained that the unrelated-works exception to the exclusivity of workers’ compensation benefits does not apply to a situation in which the employees work for the same employer and have duties related to the same vehicle at issue.^[56]

Five years later, the Florida Supreme Court quoted her Lopez dissent with approval and expressly disapproved of the Florida Second District Court of Appeal decision in Lopez, holding that the unrelated-works exception should be narrowly construed.^[57] The result of the Lopez dissent illustrates that a dissent can further the law’s development by presenting a higher court with legal analysis that persuades the higher court to adopt its reasoning and conclusion. However, the Lopez dissent also reveals that while dissents can matter in the law’s development, they often matter indirectly and after the passage of several years or even decades.^[58]

At the core of a dissenting opinion is the desire to persuade either a future panel or a higher court to adopt the dissent’s reasoning and conclusion as the correct interpretation of the law. When a dissent accomplishes this task, it helps the law evolve. For instance, Judge Scott Makar’s dissent in a criminal case helped further the law’s development when the Florida Supreme Court quoted large portions of his analysis of the absurdity doctrine in its unanimous opinion.^[59] The Florida First District Court of Appeal case, State v. Wright, 180 So. 3d 1043, 1044 (Fla. 1st DCA 2015), addressed the meaning of a “prison release reoffender” (PRR) under a state statute defining a PRR as a defendant who commits certain enumerated offenses after being released from a state correctional facility operated by the Department of Corrections (DOC).

The defendant was released from county jail because of credit for time served, but the district court majority concluded that the defendant should have been sentenced as a PRR.^[60] The majority reasoned that it would be absurd to require the state, in order to ensure a defendant was eligible for subsequent PRR sentencing, to physically transfer a defendant from jail to a DOC facility only to immediately release him or her.^[61] Judge Makar dissented and assessed the application of the absurdity doctrine to the statute.^[62] His dissenting opinion asserted that the statute’s plain language requiring release from a DOC facility is not absurd, as suggested by the majority, because it is reasonable for one to conclude that offenders released from DOC-operated prisons are generally guilty of more serious crimes.^[63] The dissent further noted that the majority’s interpretation requires rewriting the statute, not just ministerially tweaking it, in order to make it applicable to Wright.^[64] Makar’s dissent certified the issue for the Florida Supreme Court’s consideration, but the higher court did not consider the question until three years later in State v. Lewars, 259 So. 3d 793, 795-96 (Fla. 2018), under a certified conflict.^[65]

In Lewars, the Florida Supreme Court cited Judge Makar’s dissent in Wright with approval.^[66] The state’s highest court agreed that the absurdity doctrine is not appropriate for the PRR statute because there are reasonable justifications for the legislature’s decision not to apply the PRR statute to offenders who were not released from DOC-operated prisons.^[67] The court quoted the Wright dissent with approval throughout its opinion, which all seven justices joined.^[68] Judge Makar’s dissent accomplished what every dissenting judge seeks to achieve, which is for a later court to fix the mistake that the dissenting judge insists the majority made. As Justice Hughes observed, “[a] dissent…is an appeal to the brooding spirit of the law, 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.”^[69]

Judge Makar’s dissent in Wright accomplished its purpose in persuading the Florida Supreme Court, and, thus, it helped the law develop not only by convincing a higher court, but also by supplying reasoning and analysis for the higher court to include in its own opinion. In summary, as illustrated by the Lewars opinion and as further exemplified in the following discussion, dissents can help the law develop through persuasion, and also through substance and articulation, because a dissent’s reasoning or recommendations may be used verbatim in a higher court’s decision and consequently become part of the law.

A dissenting opinion may also convince a higher court to directly reverse an erroneous judgment. For instance, in Searcy Denney Scarola Barnhart & Shipley, P.A. v. State, 194 So. 3d 349, 350 (Fla. 4th DCA 2015), the law firm of Searcy Denney entered into a contingency fee agreement with the Edwards family after their minor son sustained a severe brain injury as a result of the negligence of Lee Memorial Health System employees. After the jury trial, the firm sought to obtain additional funds for the family and submitted a claim bill to the Florida Legislature.^[70] The legislature passed a claim bill appropriating millions of dollars for the care of the injured child, but the claim bill further included a stipulation limiting attorneys’ fees to $100,000, which the firm argued was an unconstitutional impairment of their right to contract with the family.^[71] The Florida Fourth District Court of Appeal rejected the firm’s argument and held that the limitation on attorneys’ fees in the claim bill was constitutional.^[72]

Judge Cory Ciklin’s dissent in Searcy Denney concluded that the claim bill’s limitation on attorneys’ fees was an unconstitutional impairment on the right to contract and threatened the role of contingency agreements as the “poor man’s key to the courthouse” by ensuring indigent individuals access to the courts.^[73] On appeal, the Florida Supreme Court cited Judge Ciklin’s dissent and agreed that the state failed to show an important public purpose, the fee limitation would have a chilling effect on the right of access to the courts, and the unconstitutional attorneys’ fee provision was severable from the remainder of the claim bill.^[74]

Ciklin’s dissent both encouraged the higher court to reverse and provided the higher court with legal reasoning that it quoted verbatim to justify its own decision. His dissent played a role in helping Florida law develop more efficiently by providing the state’s highest court with the reasoned analysis necessary to issue a well-supported opinion declaring what the law is. In this manner, dissenting opinions can help streamline legal change and development.^[75] In addition to a dissent persuading a higher court to reverse a lower court, a compelling dissent on a state’s highest court may persuade that same court to reconsider a former decision in a future case. In State v. Panama City Beach, 529 So. 2d 250, 256 (Fla. 1988) (McDonald, J., dissenting), Justice Parker McDonald disagreed with the Florida Supreme Court majority’s decision to validate the issue of investment revenue bonds.

Justice McDonald’s dissent argued that borrowing money for investment does not serve a valid municipal purpose.^[76] He noted that “investing for investing’s sake” is an aspect of commerce properly reserved to banks and business entities.^[77] McDonald’s dissent was later quoted with approval by the majority in a subsequent Florida Supreme Court decision that explicitly receded from the Panama City Beach holding.^[78] Justice McDonald’s dissent succeeded in persuading the court that obtaining proceeds to be used in investment does not constitute a proper public purpose justifying a bond issue under the Florida Constitution.^[79] Although Justice McDonald was not part of the majority in 1988, he managed to persuade his court three years later when faced with the same question of law in State v. City of Orlando, 576 So. 2d 1315 (Fla. 1991). The City of Orlando decision demonstrates that social, economic, and institutional developments that occur over time may vindicate a dissent, causing a court to accept a formerly minority view as the majority view and consequently make it part of the law.^[80]

Dissenting opinions, however, do not always lead to concrete changes in the law. At its simplest, a dissenting opinion seeks to justify and explain a judge’s dissenting vote. For example, Judge John Blue dissented in the Florida Second District Court of Appeal case, Miller v. State, 782 So. 2d 426, 433 (Fla. 2d DCA 2001) (Blue, J., dissenting), because he believed that the trial court erred in denying the defendant’s motion for judgment of acquittal. Blue’s dissent acknowledged that the defendants were “prime suspects” but emphasized that the law “requires much more than suspicion” to sustain a conviction, and for that reason, he dissented.^[81]

• Inviting a Higher Court to Provide Guidance — Aside from pointing out flaws in the majority’s findings, a dissenting opinion may help the law develop by urging a higher court to provide uniform guidance to lower courts. A higher court may further accept a lower court dissent’s recommendation of factors for a uniform test, as the Florida Supreme Court did in Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993). In Kozel, the Florida Second District Court of Appeal affirmed the dismissal of a medical malpractice lawsuit with prejudice.^[82] Concerned about unfettered trial court discretion to sanction, Judge Chris Altenbernd authored a dissent recommending a framework of five relevant factors for trial courts to consider before dismissing a complaint with prejudice due to an attorney’s misconduct.^[83]

The Florida Supreme Court agreed with Judge Altenbernd’s suggestion that trial courts should be provided with a framework to assist them in their task of sanctioning parties for acts of noncompliance, and the court adopted the five-factor framework proposed by Judge Altenbernd’s dissent and added a sixth factor.^[84] Absent Altenbernd’s dissent calling the higher court’s attention to a legal gap, this area of law may not have developed as timely as it did.

• Getting the Public’s Attention — Dissents are not always direct instigators of legal change. Sometimes, a dissent can indirectly lead to a change in the law by capturing public attention, which in turn leads to legislative action. Although Justice Shaw’s vehement dissent in Provenzano v. Moore, 744 So. 2d 413 (Fla. 1999), did not directly cause death penalty reform, it brought global awareness to the issue, generating public outcry that then led to concrete reform.^[85] The majority in Provenzano upheld the constitutionality of Florida’s electric chair despite allegations of malfunctions during recent executions — in particular, the execution of Allen Lee Davis on July 8, 1999.^[86] Justice Shaw authored a dissent maintaining that electrocution in Florida is unconstitutional, and lethal injection should be prescribed by statute.^[87]

His dissent chronicled in disturbing detail three botched executions that resulted in “extraordinary violence and mutilation” as flames “burned the heads and faces of the inmates” and one inmate “bled from [his] nostrils” while partially suffocating from the restraining devices.^[88] But more powerful than Justice Shaw’s written descriptions were the graphic photographs he appended to his dissent.^[89] The post-execution photos of Davis taken by the Department of Corrections and attached to Shaw’s dissent were viewed by millions on the internet^[90] and intensified the public discussion surrounding “Old Sparky,” Florida’s infamous electric chair.^[91] After the controversial electrocution of Davis, the Florida Legislature changed the method of execution in Florida to lethal injection.^[92] By using a dissenting opinion as a tool to capture the public’s attention, Justice Shaw authored a dissent that sparked public outrage, which, in turn, demanded and effectuated legal change.^[93]

Using Alternative Means of Persuasion

Dissenting opinions can also broaden a court’s understanding of a case by offering a divergent perspective, illuminating seemingly trivial facts, and encouraging thorough decisionmaking. A judge authoring a dissenting opinion has more of a license to tell a story and depart from the conventions of “traditional” legal writing than a judge authoring a majority opinion. Judge Makar’s dissent in Department of Agriculture and Consumer Services v. Shuler, 139 So. 3d 914, 918, 928 (Fla. 1st DCA 2014) (Makar, J., dissenting), used a map to visually depict the unlikelihood and unpredictability of the spotover fire, which had to jump hundreds of feet across Cash Creek, a natural firebreak, to reach the private land at issue in the negligence liability suit. A dissenting judge has greater freedom to do what he or she wants, including using photos, providing supplementary facts, and exploring policy ramifications. By contrast, a court usually insists that a majority opinion be a “traditional” opinion without such embellishments.^[94]

Dissents contain some of the most creative variations of legal writing. In Northern Palm Beach County Water Control District v. State, 604 So. 2d 440, 442-43 (Fla. 1992), the majority concluded that construction of a private country club roadway served a valid public purpose within the purview of the Florida Constitution and validated the bond issue. Troubled by the majority’s decision to allow a public entity to pay nearly $6 million in roadside landscaping costs to promote the private club’s “Caribbean island motif,” Justice Shaw dissented.^[95]

To highlight that simply designating a project “public” by legislative decree does not necessarily give it a public purpose, Justice Shaw’s dissent quoted Humpty Dumpty from Lewis Carroll’s Through the Looking-Glass to make his point: “‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’”^[96] As these creative opinions show, dissents allow judges to shed light on issues that the majority overlooked or disregarded, and dissents give judges the opportunity to express their disagreement through a less-restrained channel.^[97]

Collegiality in Dissenting

Before writing a dissent, a judge may consider how it will impact other judges on the court. Judge Richard Posner recommends that every newly appointed judge be instructed on the significance of collegiality in an appellate court, because breakdowns in collegiality lead to unnecessary dissents and bitterness that can impact judicial votes.^[98] A judge may be deterred from issuing a dissenting opinion because it typically means more work for the judges on the panel — not only the dissenting judge, but also the majority, who may feel the need to counter the dissenting judge’s arguments.^[99]

Seniority and institutional roles may also influence a judge’s decision to dissent. Freshman judges may be more inclined to defer to senior judges on the panel, whereas judges in senior status typically have a reduced caseload, and, thus, have greater opportunity and potentially more motivation to write separate opinions.^[100] Chief judges and justices may feel responsible for fostering a sense of collegiality on the court and consequently be less likely to issue dissenting opinions.^[101]

Concern with preserving collegiality may properly induce a judge to lower his or her rhetorical volume.^[102] One former Florida Supreme Court justice stressed that a dissenting judge should not cast “low blows,” such as “ad hominem attacks” or “snarky” criticisms, in an opinion.^[103] She shared an anecdote of when she removed a sentence from a dissent after a justice in the majority told her that he found it offensive.^[104] She explained that she deleted the sentence because it was not particularly important and because she was well-aware that the same justice might provide her with a needed fourth vote in a future case.^[105]

However, dissenting does not automatically translate to a strain on collegiality.^[106] Collegiality should not be equated with universal agreement among judges; rather, collegiality means that judges are willing to listen, persuade, and be persuaded all within an environment of civility and mutual respect.^[107] Dissents that avoid uncivil behavior and embrace the positive benefits of collegial norms are part of a broader, truth-seeking dialogue, as opposed to a hostile conflict unworthy of public respect and institutional legitimacy.^[108] As discussed in the next section, there are basic tenets that a dissenting judge should follow to ensure collegiality is not frayed and legitimacy (both individual and institutional) is not weakened.

Recommendations

First and foremost, a dissenting judge should not make personal criticisms in a dissent. This golden rule may seem obvious, but the nature of a dissent, which is essentially a direct response to the majority, makes it easier to get personal in one’s arguments. Many judges and justices have fallen into the name-calling trap, as epitomized by Justice Scalia’s infamous dissent in Obergefell v. Hodges, 135 S. Ct. 2584, 2629-30 (2015) (Scalia, J., dissenting), where he sharply criticized the majority opinion authored by Justice Kennedy as “profoundly incoherent,” “egotistic,” “pretentious,” filled with “silly extravagances,” and a hubris-inspired “judicial Putsch.”

A Sixth Circuit dissent went as far as to challenge the integrity of the judges in the majority.^[109] The judges in the majority took the dissent’s comments personally and accused the dissenting judge of directing “ad hominem” attacks against them by claiming they violated their oath to uphold the law.^[110] The Sixth Circuit majority was so offended that they explicitly referenced the dissent’s impact on collegiality: “Our dissenting colleague’s own purposes may be furthered by publicly impugning the integrity of his colleagues. Collegiality, cooperation and the court’s decision-making process clearly are not.”^[111]

Dissents are not the only opinions to use personal attacks. One majority snidely stated, “We think it more important not to misstate or distort the record, sins repeatedly committed by the dissent.”^[112] In a footnote, the dissenting judge characterized the majority’s comment as an “ad hominem” attack that is “uncharacteristic and unworthy of members of this division.”^[113] These cases teach the universal lesson that judicial opinions are not weapons for judges to use against one another. A dissent is not an opportunity to get into a showdown with a fellow justice. Judge Posner’s suggestion that new judges be cautioned against dissenting without hesitation or good reason, and against mockery or anger directed toward their colleagues (whether face-to-face or in opinions) is wise advice.^[114]

These types of confrontational judicial opinions cause discomfort to readers, and they illustrate the importance of focusing only on legal reasoning, the case’s merits, and any relevant policy considerations. A dissenting opinion is not an opportunity for cathartic relief, and even dissents must show restraint. One judge remarked that even the most emphatic dissents should be critiques of a judge’s legal reasoning in a particular case and should never devolve into personal attacks.^[115] Another judge advised that before issuing a dissent, a judge “must weigh the institutional and personal costs and benefits, understand the purpose of the dissent and the audiences for it, and always be attentive to style and tone.”^[116] Judges contemplate a number of factors when choosing whether to dissent.^[117]

The following list of recommended questions may be considered by a judge before he or she authors a dissent: What is my purpose in dissenting? How strongly do I feel about the issue(s) presented? Is writing this dissent necessary? Are the facts of this case appropriate for the argument that I would like to make, or might a future case with different facts provide a better opportunity? Is the majority opinion sufficiently narrow that I could join the decision with minimal compromise? Is there strong legal or policy reasoning that supports my view? Do any of my colleagues agree with my position? Can I support my dissent with sound legal reasoning without devolving into personal complaints about the majority? These questions are intended to guide reflection, and the author recognizes that the decision to dissent is a personal one that is particular to every individual judge and depends on the specific case under consideration.

Conclusion

Dissenting opinions have grown in use and popularity, but judges, attorneys, and scholars are divided on the value of dissents in comparison with their costs. Although the most common objection to a dissent is that it adds uncertainty to the law and weakens the force of the majority’s decision, the cases examined in this article reveal that without such voiced disagreement, it would be exceedingly difficult for the law to develop. Even recognizing that consensus has value, unanimity at the expense of judicial independence and the integrity of the decision-making process does not serve the law’s purpose. Dissents foster the law’s development by identifying legal gaps and generating substantive changes in the law.

Dissents can produce such changes in the law both directly and indirectly. For example, dissenting opinions have facilitated the law’s development by encouraging death penalty reform in Florida, recognizing the privacy rights of Bar applicants, clarifying principles of statutory interpretation, helping establish guidance for trial courts regarding when to dismiss a case with prejudice, and prompting subsequent reversals. For these reasons, the court that referred to a dissent as merely “what the law is not,” oversimplified the function of a dissent. A dissenting opinion can perpetuate change, impact the law, and ultimately become the law.

Rather than contributing to uncertainty and weakening a court’s institutional prestige, dissents strengthen a court’s legitimacy by reinforcing the public view of the court as an impartial and professional decision-making body engaged in a truth-seeking dialogue, where neither force nor desire to conform will prevent a judge from undertaking a candid and independent analysis of the law. Although critics of dissents condemn their effect in preventing a court from speaking with one voice, dissents can serve to strengthen majority opinions, not weaken them, by identifying flaws in the majority’s reasoning that can subsequently be addressed by the majority.

Dissents help the law develop effectively, and this article predicts the continued vitality of dissenting opinions, as they protect the judicial decision-making process from going stale, provided that dissenting judges refrain from using ad hominem arguments in their dissents. A dissenting opinion offers a judge the freedom to deviate from traditional opinion-writing conventions, but as a general golden rule, dissenting judges should only dissent with a purpose and should refrain from casting personal aspersions in a dissenting opinion.

Iman Zekri earned her juris doctor, cum laude, in May 2020 from the University of Florida Levin College of Law, where she was a member of the Florida Moot Court Team and an editor for the Florida Journal of International Law. She completed her undergraduate studies at Florida Gulf Coast University, where she graduated summa cum laude with a bachelor of arts in political science.