Temple Tidings, December 2001

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 Oregon and Hawaii Supreme Courts crooning about how they were of one mind in more than 95 percent of the cases before them.  I secretly asked myself whether “one mind” was the sum of seven?

 

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
Ireland	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-à-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, October 31, 2000 to October 30, 2001

Percentages of Agreement in dissent based on 175 cases