The American JudiciaryBaldwin, Simeon E. (Simeon Eben)
History
The American Judiciary
Baldwin, Simeon E. (Simeon Eben)
Courts -- United States; Law -- United States -- History
Dissenting opinions are comparatively rare, particularly in
courts where there is a Chief Justice with the qualities of a
leader; that is, with ability, learning and tact, each in full
measure.[Footnote: Perhaps tact counts the most, for the Chief
Justice has the advantage of hearing the opinions of all his
associates at all consultations before he gives his own. Senator
Hoar makes a pungent comment on Chief Justice Shaw's want of it,
in his Autobiography, II, 413.] Every instance of dissent has a
certain tendency to weaken the authority of the decision and even
of the court. Law should be certain, and the community in which
those charged with its judicial administration differ
irreconcilably as to what its rules really are, as applied to the
transaction of the daily business of life, will have some cause
to think that either their laws or their courts are defective and
inadequate. For these reasons judges of appellate courts often
concur in opinions, of the soundness of which they are only
convinced because of the respect they entertain for the good
judgment of their associates. They are willing to distrust
themselves rather than them.
Not seldom, however, dissent and the preparation of a dissenting
opinion has in the course of time, aided, perhaps, by some change
of membership, converted the court and led to overruling a
position incautiously taken which was inconsistent with settled
law.[Footnote: A striking instance of this is the case of
Sanderson _v._ Pennsylvania Coal Co., 86 Pennsylvania State
Reports, 401; 94 _id_., 302; 102 _id_., 370; 113
_id_., 126; 6 Atlantic Reporter, 453.]
More than eighty out of every hundred of the opinions delivered
in the courts of last resort of each State of the United States,
excepting one (New Jersey), and contained in the last volume of
the reports of each published prior to June, 1904, were
unanimous. In New Jersey seventy-three out of every hundred
were. In two States, Maryland and Vermont, there was dissent in
but two out of every hundred cases, and in all the States taken
together, out of nearly 5,000 cases decided a dissent is stated
in 284 only. This made the proportion of unanimous decisions of
State courts, in the country at large, to those in which there
was dissent nineteen to one.[Footnote: _Law Notes_ for June,
1904, p. 285.]
A dissenting judge sometimes files an opinion which is then
printed in full in the reports. More often the fact of his
dissent is simply noted. In cases involving constitutional
questions it is rare for a dissenting judge not to state his
reasons. The importance of the subject justifies if it does not
demand it. As Mr. Justice Story once observed, "Upon
constitutional questions the public have a right to know the
opinion of every judge who dissents from the opinion of the
court, and the reasons of his dissent."[Footnote: Briscoe
_v._ Bank of Kentucky, 11 Peters' Reports, 257, 349.]
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