M. Todd Henderson (University of Chicago - Law School) has posted From 'Seriatim' to Consensus and Back Again: A Theory of Dissent on SSRN. Here is the abstract:
Why do judges dissent? There are several conventional answers. One is that dissents communicate legal theories to future judges, litigants, or politicians in the hope of becoming law later. Another is that dissents reveal the internal deliberation of courts, thus increasing their legitimacy in a democratic society. Both of these suggest that dissent improves the law making process.
Other theories are potentially less benign. For example, dissents are inevitable given the ego and life-tenure of Article III judges or dissents enable majorities to be bolder in their holdings, thereby creating more law than is necessary. Chief Justice Roberts adheres to this latter view, and therefore has called for more unanimity on the Court. Before we can say whether Roberts's goal is worth pursuing, we must have a full account of the reason for dissent.
This paper traces the history of judicial discourse to understand the reason for dissent. Over the past several hundred years, the Supreme Court and its predecessors in England have sometimes issued dissents and sometimes spoken largely with one voice. A specific change in the delivery of opinions has happened at least three times on a grand scale: (1) Chief Justice Mansfield's change from traditional seriatim opinions to an “opinion of the court” in England circa 1760; (2) a similar change in the United States Supreme Court upon the ascendancy of John Marshall to Chief Justice in 1801; and (3) the development of a tradition of writing separately during the New Deal era of the Supreme Court, which has persisted to the present.
This paper shows that in each case the change in judicial discourse was made in an attempt to increase the power of law courts over other forms of dispute resolution. For example, Mansfield and Marshall moved from seriatim opinions to an “opinion of the court” to bring certainty to decisions and thereby increase the power of their courts, whereas the modern move away from unanimity is about achieving the same goal, but by using dissent to placate losers and protect the Court's jurisdiction over politically contentious issues like abortion or affirmative action. In short, history shows that judicial discourse, be it unanimity or seriatim or something in the middle, reflects court power, and those who want to change court power did so through a change in judicial discourse.
Here is a tiny taste that gives a nice sense of the flavor of this rich paper:
Chief Justice Stone admired the practice of dissent and its recent history in the Court. He knew the power of Holmes and Brandeis to change the law through dissent, and Stone sought to encourage the practice.189 Therefore, compared to earlier chief justices who sought compromise above all else, Stone was an ineffective “leader.” His conference debates were heated and filled with controversy.190 In them, Stone encouraged dissent stating that “[t]he right of dissent is an important one and has proved to be such in the history of the Supreme Court . . . I do not think it is the appropriate function of a Chief Justice to attempt to dissuade members of the Court from dissenting in individual cases.”191 The “history” that Stone was referring to was the recent vindication of Holmes’s dissent in Lochner. Stone was a new breed of lawyer in control of the law’s most powerful entity during a fundamental change in our understanding of legal reasoning. Law was now politics to a great extent, and Stone was willing to assert the Supreme Court as a political branch. Stone achieved this revolution at the Court by increasing the use of dissenting opinions just as Marshall implemented his revolution by introducing the unanimity consensus. As discussed briefly below, the means were different, but the ends were the same.
Stone increased the power of the Court, and thus achieved the same results as Marshall, but for different reasons and under different circumstances. Both Marshall and Stone were about achieving a more active political role for the Court. To increase the power of the Court specifically and the law generally, Stone encouraged debate and controversy rather than suppressing it as Marshall was required to do to accomplish the same end. Only through the use of dissent could Stone extend the reach of the Court from primarily economic matters into the realm of civil liberties.
It is not necessary to say that Stone knew that increasing tolerance for and practice of dissent was likely to have the impact that it did on the Court’s domination of controversial public policy questions. The practice here, like that for Marshall, may well have been one that seemed natural, reflected the mood of the times, and been merely a satisfaction of the preferences of those on the Court. But it is unmistakable when viewed in light of the other discursive changes, that these explanations are just the surface or “conditions of possibility”(you put quotes around it elsewhere) that undergird the true sociological explanation for the practice.
Very cool paper. Highly recommended.
