Dissenting Without Opinion

It used to be a common practice for Supreme Court Justices to dissent without writing an opinion.  Today we would think that this was strange, and as far I can tell the change came around 1940 with the retirement of the “Four Horsemen” who opposed the New Deal.  Why was this norm for judicial behavior abandoned?

First, prior to 1925 the Court did not have discretion over its docket.  As a result, the Justices heard a lot more cases than they do now.  Furthermore, many of those cases involved federal common law (torts, contracts, etc.) that were relatively unimportant.  Under those conditions, people were probably more tolerant of a Justice who simply noted his position and saved the written opinions for important cases. Second, Justices in that era only had one clerk (or before that none).  Thus, if a member of the Court was elderly or ill there would be every reason to think that he could not write.  Today (though we don’t say so explicitly), there is a stronger expectation that such a Justice can still produce opinions.

Are there any other possible explanations?

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5 Responses

  1. NMissC says:

    I was unaware this was a common practice at the U..S. Supreme Court. In the last 20 or so years, it has become a common (and annoying) thing at the Mississippi Supreme Court, with all kinds of mysterious variations (such as “dissenting in part.” What part? They don’t say). Some justices do this a lot, and some not at all. I’ve heard from former clerks and staff (off record) explanations about judges not wanting to hold up decisions while they write or that there’s so much work to do (I don’t believe either reason).

    I’ve been gripping about this in posts about the Mississippi court for about a year on my blog. There have been cases that went 5-4 where one or two majority votes concurred with the decision only. Where does that leave the majority opinion?

    Returning to your subject– yes, I think this is strange. I’m curious how much of the effect relates to how closely the day-to-day actions of the U.S. Supreme Court are followed now, and the expectations that creates.

  2. Peter McCormick says:

    What I have always found even more intriguing is the “dubitante” reasons — crudely, “I am not absolutely sure that this is right, but I am going to sign on to it anyway.” Somewhat dated in its use as well, but intriguing; I am not sure how happy I would be to have a colleague signing on with that. Jason Czarnezki had an article on this in 39 Akron Law Review (2006).

  3. Ken says:

    Gerard asks “Are there any other possible explanations?”

    I counter with “Are there any other sensible alternatives?” Isn’t there some middle ground between simply saying “I disagree” and writing a major Law Review article supporting your disagreement?

    It seems to me that the construction of dissents has become a monumental task. It appears that a pithy dissent is not valued. Instead it appears we value the scholarship, which IMO a Justice of the Supreme Court should no longer feel obligated to demonstrate. I cite as an example the long, detailed, and well-supported dissent of Justice Stevens in the Citizens United case.

    Whether you disagree with his dissent is a side issue. There is no doubt that it is long, detailed, and well supported. However, what I doubt is whether all that detail and supporting information is effective towards his objective, which is (presumably) going on record with his disagreement with his colleagues and explaining why.

    I think that objective would have been served better by writing a few pages (instead of the 90), containing the introductory paragraphs prior to Roman numeral I and the summary paragraphs of Roman numeral V. In my “middle ground” suggested above, I would call this “explaining in simple English the reasons for my disagreement.”

  4. Gerard Magliocca says:

    I agree. Holmes’ dissent in Lochner is one of the best and it’s quite short.

  5. peter says:

    this is discussed in Robert Post’s article, “The Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship, and Decisionmaking in the Taft Court,” 85 Minnesota Law Review 1267 (2001).