The Supreme Court’s Monthly Employee Newsletter
By Justice Richard B. Sanders
I dissent!
Justice William J. Brennan,
Jr., published an article in the January 1986 Hastings Law Journal, “In Defense
of Dissents,” confessing that when he first came to the U.S. Supreme Court, he
did not write a single dissent, although 42 of the 56 opinions he authored in
1985 were just that. So why
dissent?
After all, the law is
made by those who command the majority, not the outsiders. Even Justice Oliver Wendell Holmes, the
“Great Dissenter” at one point opined that dissents are generally “useless” and
“undesirable.” Justice Potter Stewart
labeled dissents “subversive literature.”
But by the time he
wrote the article Justice Brennan was a true believer in the power of
dissent. In this way flaws are
demonstrated in the majority’s legal analysis, thereby laying the basis for
future corrective action. And a dissent
holds the majority accountable for the rationale and consequences of its
decision. “At the heart of that function
is the critical recognition that vigorous debate improves the final product by
forcing the prevailing side to deal with the hardest questions urged by the
losing side.” And the most enduring
dissents may be characterized as “prophets with honor,” as was Justice Harlan’s
dissent in Plessy v. Ferguson. Today’s dissent may be tomorrow’s
majority. At least I hope so when the
dissent is mine.
So what about
dissents on our Court? I must admit I
was a little peeved when I heard Justices from the
So I undertook a
little statistical analysis of the opinions appearing in our advance sheets
between Halloween 2000 and Halloween 2001 (the day I won the costume
contest). Here are the results.
Of the 175 published
opinions, 65, or 38 percent, were with dissent.
I hereby award myself first prize for total number authored (24) and
total number signed (40). On the other
hand, Justice Smith won the prize for the least dissents (of the Justices
active during that entire period), having signed 7 and authored none. Here is how my colleagues fared, realizing
that Justices Talmadge and Guy served for only a part of the period in
question. Moreover I have omitted
Justices Chambers and Owens because they do not have a sufficient track record.
|
Justice |
Dissents Authored |
Dissents Signed |
|
Sanders |
24 |
40 |
|
Talmadge |
13 |
15 |
|
Johnson |
11 |
30 |
|
Alexander |
7 |
23 |
|
Madsen |
7 |
16 |
|
|
5 |
13 |
|
Guy |
1 |
8 |
|
Bridge |
0 |
11 |
|
Smith |
0 |
7 |
I
believe the distribution of dissents between the various Justices represents
not only their view of the law vis-ŕ-vis the Court’s majority, but also their philosophy
about whether and under what circumstances a dissent is appropriate. Justice Smith, for example, has probably
written only 4 dissents in his entire career on the Supreme Court, although he
has evidenced his willingness to sign dissents authored by others on occasions.
Justice Smith tells
me consensus is a value to be achieved absent serious principled
disagreement. I guess I find more
principled disagreements than does Justice Smith.
Can one write two
opinions in the same case? In State v. Brett, 126 Wn.2d 136 (1995),
Justice Dolliver not only wrote the majority opinion but a separate concurrence
(joined by Justice Smith), stating his view that the death penalty was wrong in
principle, yet believed the current state of the law required it.
I also wondered about
who agrees with whom when it comes time to dissent. A chart is on the reverse.
There is another way
to look at this: If 38 percent of our
cases had a dissent, that must mean 62 percent of the cases were
unanimous. And even I, the most prolific
of the dissenters, was with the majority about 77 percent of the time. Does this mean I’m losing my edge, “Going
along to get along?”
I’ll try to do better
next year.
n
Justice Richard B. Sanders
Data of Dissenting Opinions from Advance Sheets,
Percentages of
Agreement in dissent based on 175 cases
|
|
Alexander |
Smith |
Johnson |
Madsen |
Sanders |
|
Bridge |
Guy |
Talmadge |
|
Alexander |
X
|
1.1% |
8.8% |
4.7% |
11.7% |
0.6% |
0 |
0 |
0 |
|
Smith |
1.1% |
X |
4.1% |
0.6% |
3.0% |
0.6% |
0 |
0 |
0.6% |
|
Johnson |
8.8% |
4.1% |
X |
3.5% |
12.3% |
1.8% |
0 |
0 |
2.3% |
|
Madsen |
4.7% |
0.6% |
3.5% |
X |
4.7% |
1.2% |
1.2% |
1.8% |
2.3% |
|
Sanders |
11.7% |
3.0% |
12.3% |
4.7% |
X |
1.2% |
0 |
0 |
0 |
|
|
0.6% |
0.6% |
1.8% |
1.2% |
1.2% |
X |
4.7% |
2.9% |
3.5% |
|
Bridge |
0 |
0 |
0 |
1.2% |
0 |
4.7% |
X |
2.9% |
3.5% |
|
Guy |
0 |
0 |
0 |
1.8% |
0 |
2.9% |
2.9% |
X |
1.8% |
|
Talmadge |
0 |
0.6% |
2.3% |
2.3% |
0 |
3.5% |
3.5% |
1.8% |
X |