Doubting Opinions

Every once in a while I come across a separate opinion in a case that is labelled “doubting” or “dubitante.”  It’s uncommon at the Supreme Court level (the last one I see came in the 1970s), but there are circuit court judges who use this mode of expression (Judges Easterbrook, Sutton, and Calabresi, to name just three).

I’m not sure what is gained by saying “dubitante” instead of “concurring.”  I suppose the former is clearer because it is communicating something like “I agree with the majority’s rationale, but I might not the next time around,” whereas the latter is saying “I do not agree with this rationale.”  Is there some other reason for using the doubting formulation?

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2 Responses

  1. Joe says:

    I recall seeing this term a few times. One account notes its rarity — at the time of writing, only used 626 times as a whole: http://www.uakron.edu/dotAsset/727810.pdf

    [See also, http://michiganlawyerblog.wordpress.com/2012/08/27/word-of-the-day-dubitante/ — the link there to that article, however doesn’t work for me.] The article suggests in part that the term implies you agree with the opinion but are wary about it. It is sort of a hedged join. Read the whole thing.

  2. Joe says:

    JUSTICE BLACKMUN, concurring.

    I join the Court’s opinion and its judgment. I do so, however, with less than full assurance and satisfaction.

    [United States v. Hohri] This might be a good time to use the term.