Opinion Writing in the Appellate Process and the Place for Dissents (12/7/12)

I thought it might be helpful for students of the appellate process (hopefully some tax procedure students will  be interested) to know of this article by Judge Diane P. Wood of the Seventh Circuit Court of Appeals:  Diane P. Wood, When to Hold, When to Fold and When to Reshuffle: The Art of Decisionmaking on a Multi-Member Court, 100 Calif. L. Rev. 1445 (2012), here.  Judge Wood makes some salient observations about opinion writing in the appellate process.  Students can read and enjoy.

I will also cut and paste some discussion on the the role of the dissent -- certainly the grand dissent that stands the test of time -- from Kenji Yoshino, A Thousand Times More Fair: What Shakespeare's Plays Teach Us About Justice 205-208 (2012), in which the author develops concepts of justice presented in Shakespeare's major plays.  Key excerpts in his chapter on Hamlet:

In a 1931 essay titled “Law and Literature,” soon-to-be Supreme Court Justice Benjamin Cardozo explores both the importance of idealism and the importance of containing it. Cardozo observes that dissents tend to be more idealistic than majority opinions:  

The voice of the majority  may be that of force triumphant, content with the plaudits of the hour, and recking little of the morrow. The dissenter speaks to the future, and his voice is pitched to a key that will carry through the years. Read some of the great dissents, the opinion, for example of Judge Curtis in Dred Scott vs. Sandford, and feel after the cooling time of the better part of [a] century the glow and fire of a faith that was content to bide its hour. The prophet and the martyr do not see the hooting throng. Their eyes are fixed on the eternities.  

Cardozo observes that dissents can afford to be more idealistic because they have no immediate force in the world. The dissenter, who has already lost, can express an ideal justice for “the eternities.” 

Conversely, one of the costs of power is that it must be more careful: “The spokesman of the court is cautious, timid, fearful of the vivid word, the heightened phrase. He dreams of an unworthy brood of scions.” The coercive effect of his words disciplines his rhetoric: “The result is to cramp and paralyze. One fears to say anything when the peril of misunderstanding puts a warning finger to the lips.”  

Cardozo correctly intuits an inverse relationship here between force and fancy. The coercive force of a majority opinion places constraints on the way its authors can exercise their imaginations. In contrast, the dissenter has no such constraints, and so can engage in more aggressive acts of imagination. Cardozo celebrates the value of both genres. The dissenting opinion is valuable because it permits a legal actor to articulate ideals of justice at a crystalline level of purity for future majority opinions to take up, or not. The majority opinion is valuable because it adjusts those ideals for the world we inhabit.  

Cardozo’s example clarifies this dynamic. In the 1857 case of Dred Scott v. Sandford, Justice Benjamin  Curtis vigorously dissented from a majority opinion arguing that the descendants of slaves were not citizens under the federal Constitution. That dissent later became a basis for enacting the Fourteenth Amendment (1868), the home of the equality principle in our Constitution. Yet while the Fourteenth Amendment overrode the Dred Scott majority, its language is much more restrained than the soaring rhetoric of Curtis’s dissent.  

Cardozo is not speaking about intellectuals in this  essay. Nonetheless, he captures something important about us. The general run of intellectuals—academics, journalists, writers, and the like—generally are in the position of the dissenter. We are not the decision makers, and this gives us the freedom to engage in flights of fancy. In the realm of social justice, we can imagine utopias.  

The danger arises when we lack the self-consciousness to understand that our ideals are just that—ideals. For them to be rendered functional, an additional act of translation is necessary. When we or our acolytes seek to impose them in their pure form on society, the results are usually disastrous. Consider the tradition of literary utopias, extending from Sir Thomas More’s Utopia through Étienne Cabet’s Travels in Icaria to B. F. Skinner’s Walden Two. French socialist readers of Cabet founded a real Icaria in the United States; disciples of Skinner created communal societies modeled on his book in Mexico, Virginia, and Missouri. As literary critic Northrop Frye acidly observes, “There have been one or two attempts to take utopian constructions literally by trying to set them up as actual communities, but the history of these communities makes melancholy reading.”  

This is Hamlet’s mistake. He clings to his intellectual conception of poetic justice with extraordinary tenacity and seeks to impose it on the world. Such is the force of his will that he is able to do so with respect to Claudius, but only at immeasurable cost to the world around him. A more pragmatic person would either have assassinated Claudius in private in the chapel or, alternatively, like Laertes, have considered leading an insurgency to take over the state. But Hamlet wishes to have all the imaginative freedom of a dissent with none of the caution of a majority opinion. In the end, while his delays are justifiable, the purpose they serve is not. Hamlet’s failed justice stands  as a cautionary tale to intellectuals in the play-outside-the-play.