In the mid-20th century, it became common for members of the U.S. Supreme Court and many state supreme courts to end their dissent with a variation of the phrase „I respectfully disagree.” In turn, the omission of the word „respectful” or the entire sentence is now seen as a sign that the dissenting judiciary is particularly angry with the majority on the issue on which it disagrees. [3] This article discusses the increasing use of dissent with a focus on dissenting opinions of Florida state court decisions. Since dissent prevents a court from speaking with one voice and can affect collegiality in a court, dissent has been criticized as „unnecessary”[1], „undesirable”[2] and „subversive.” [3] The costs and benefits associated with dissenting opinions are unresolved – some view dissenting opinions as significant contributions to the law, while others argue that dissenting opinions only add confusion to the law. [4] This article presents different approaches that Florida judges and judges have used to draft dissenting opinions, and reviews different ways in which dissenting opinions affect the law. It is clear from this discussion that dissenting opinions are an integral part of law-making, and if judges do not stray from it, the law does not develop effectively. This article concludes with a list of recommended questions that judges should consider in determining whether dissent writing is beneficial in a particular case, and also proposes a golden rule that dissenting judges can follow to maintain collegiality in their court. • Voluntary policy changes — While dissent signals, by definition, a lack of consensus,[42] dissent shapes the law in many ways, not only by contributing to subsequent annulments, but also by making policy changes. Even if there is a majority opinion, dissent can lead to a voluntary review or change in policy. For example, in Florida Board of Bar Examiners Re: Applicant, 443 So. 2d 71 (Fla. 1983), the Florida Supreme Court considered the applicant`s challenges to the state bar association`s mental health issue[43] and the Licensing and Dismissal Form under the right to privacy and due process. [44] In a 6-1 decision, the Court dismissed the applicant`s challenges and found that the Board`s actions did not violate the Florida or U.S.
Constitution. [45] The dissenting judiciary disagreed with the majority`s contention that the resources used by the Commission could not be limited without compromising the Committee`s effectiveness in carrying out its tasks. [46] An appellate court gives its opinion in a highly controversial case. Victorious and defeated lawyers read the well-reasoned majority opinion that clarifies the current state of the law. They read the majority`s conclusion to the end, but realize that the decision does not end there. One judge disagreed, with an opinion that was even longer than the majority opinion. The appellate lawyers read the dissent, and suddenly everyone no longer feels so firm in their belief that the law, as passed by the majority, is now clarified. Was the dissenting judge correct when he decided to write a dissenting opinion? Should lawyers, academics and other courts consider dissent when faced with similar factual circumstances? Will this dissent convince a future court or a superior court? How has dissent affected the collegiality of the Court`s judges? [115] Evans v. Stephens, 387 F.3d 1220, 1239 (11th Cir. 2004) (Barkett, J., different).
Dissenting opinions are often more important than concurring opinions because they represent the majority of the court, but some courts do not value them. Despite these concerns, the use of dissenting opinions has increased significantly over time. „Between 1789 and 1928, dissenting opinions and agreements were filed in only 15% of all cases decided by the Supreme Court.” [21] From 1930 to 1957, this figure almost tripled, with dissenting opinions expressed in 42% of Supreme Court decisions. [22] „In October 1992, only dissenting opinions were presented in 71% of all cases decided by the Court.” [23] Over time, the courts have grown to accommodate the voice of every judge, and many judges no longer feel reluctant to dissent, as they did in the past. [24] Justice Ruth Bader Ginsburg even has a famous „dissent necklace” that she wears when the court announces a decision with which she disagrees. [25] As discussed in the next section, judges and practitioners have different views on the usefulness of dissenting opinions, and different judges take markedly different approaches to drafting dissent. A dissenting opinion is not a binding precedent, but may be cited by lower courts as persuasive authority. Judges who agree with the majority may also issue concurring opinions to express agreement with the result achieved by the court, but to offer additional legal justifications or analysis.
Every decision of the U.S. Supreme Court has a dissenting opinion. To emphasize that simply labeling a project as „public” by Order in Council does not necessarily confer a public purpose, Justice Shaws quoted Humpty Dumpty of Lewis Carroll`s Through the Looking Glass to clarify his point: „When I use a word,” Humpty Dumpty said in a rather contemptuous tone, „it means exactly what I choose. to think so – no more and no less. [96] As these creative opinions show, dissenting opinions allow judges to shed light on issues that the majority has neglected or ignored, and dissenting opinions give judges the opportunity to express their disagreement through a less restricted channel. [97] Makar J.`s dissenting opinion in Wright served its purpose in convincing the Florida Supreme Court, thereby helping to develop the law not only by convincing a superior court, but also by providing arguments and analyses that the superior court could incorporate into its own opinion. In summary, dissent, as exemplified by the Lewars Declaration and illustrated in more detail in the following discussion, can help the law to develop through persuasion as well as substance and articulation, since the reasoning or recommendations of a dissent can be used verbatim in the decision of a higher court and, therefore, be part of the law. The special vote is admissible only before the constitutional courts. A minority opinion cannot be published in all other courts. A judicial obligation of confidentiality arises from Article 43 of the DRiG, which protects the secrecy of proceedings. The introduction of special votes in all courts was discussed in detail at the 47th German Bar Conference in 1968. It may seem that dissent is just a way for a judge to voice his or her grievances, but it actually does much more than that.