Henderson on Dissent

The Supreme Court term started last week, and the docket includes many interesting and controversial cases. A safe prediction is that there will be many cases in which the Court splits 5-4 firmly along ideological lines. We take it for granted that justices can dissent, issue official separate opinions, and that the public vote of the justices is revealed, but this was not always so. In a new paper recently posted to SSRN, Professor Henderson traces the history of opinion delivery practices in England and the United States in search of an explanation for the current practice of dissent. The history shows that the discourse is about power, and that courts adapt their opinion delivery practices to achieve a greater role over dispute resolution.

From 'Seriatim' to Consensus and Back Again: A Theory of Dissent
M. Todd Henderson
University of Chicago - Law School
October 2007
U of Chicago Law & Economics, Olin Working Paper No. 263

Abstract:      
Why do judges dissent? There are several conventional answers. One is that dissents communicate legal theories to future judges, litigants, or politicians in the hope of becoming law later. Another is that dissents reveal the internal deliberation of courts, thus increasing their legitimacy in a democratic society. Both of these suggest that dissent improves the law making process.

Other theories are potentially less benign. For example, dissents are inevitable given the ego and life-tenure of Article III judges or dissents enable majorities to be bolder in their holdings, thereby creating more law than is necessary. Chief Justice Roberts adheres to this latter view, and therefore has called for more unanimity on the Court. Before we can say whether Roberts's goal is worth pursuing, we must have a full account of the reason for dissent.

This paper traces the history of judicial discourse to understand the reason for dissent. Over the past several hundred years, the Supreme Court and its predecessors in England have sometimes issued dissents and sometimes spoken largely with one voice. A specific change in the delivery of opinions has happened at least three times on a grand scale: (1) Chief Justice Mansfield's change from traditional seriatim opinions to an “opinion of the court” in England circa 1760; (2) a similar change in the United States Supreme Court upon the ascendancy of John Marshall to Chief Justice in 1801; and (3) the development of a tradition of writing separately during the New Deal era of the Supreme Court, which has persisted to the present.

This paper shows that in each case the change in judicial discourse was made in an attempt to increase the power of law courts over other forms of dispute resolution. For example, Mansfield and Marshall moved from seriatim opinions to an “opinion of the court” to bring certainty to decisions and thereby increase the power of their courts, whereas the modern move away from unanimity is about achieving the same goal, but by using dissent to placate losers and protect the Court's jurisdiction over politically contentious issues like abortion or affirmative action. In short, history shows that judicial discourse, be it unanimity or seriatim or something in the middle, reflects court power, and those who want to change court power did so through a change in judicial discourse.

Comments

[Joan A. Conway]

I believe an important reason why we dissent is based on generational gap(s) in our collective experiences.

Getting those old justices off the bench has been a popular cry as long as I can remember, and now Justice Paul Stevens finds himself in the same spot with Justice John Roberts.

[Michael Martin]

This is an interesting hypothesis, but how could it be falsified?

In particular, don't ECJ opinions falsify the hypothesis? If not, is that because these "power plays" are too cultural-centric?

[LAK]

Dear Todd,

http://www.ft.com/cms/s/0/29593584-7a7a-11dc-9bee-0000779fd2ac.html?nclick_check=1

Your friend,

LAK

[Todd Henderson]

Dear LAK,

Guilt is a powerful emotion. Tell someone enough times they are crook, and even if not true they will come to believe it. The overwhelming amount of data points in the other direction. Don't believe me, a former Kirkland lawyer, look at the recent batch of papers from econ and finance scholars on this point.

Relatedly, I asked a recent class of about 100 directors at an executive education program I was teaching how many of them thought CEOs were overpaid today, and about 5 raised their hands.

So I'm not sure this poll (or the one I ran) tells us much about the efficiency of wages. The data is what it is, and the correlation between pay and performance is strong, and as strong as it has ever been.

Your friend, and servant of all that is right and good ; ),

Todd

[LAK]

Todd,

As your collegue Martha Nussbaum would be happy to remind you, emotions both inform and reflect reason.

I'd love to read a recent batch of papers on the subject. Any ones in mind? While you're on the worng side of things, at least you discuss or tacitly touch on the distribution of wealth, which is more than can be said for much of the left, who notes that income inequatity as it historic levels about once a year when some report comes out.

As your collegue Cass Sunstein would certainly point out, there are going to be plenty of reasons why 100 directors at an executive education program would give respones that don't truly reflect their individual thought. From jury effects to the fact that directors who attend executive education programs probably want to be CEOs themselves (if they aren't already at some other corporate entity other than the one for which they are a director - funny how that works). More powerful than even guilt is self-interest and greed.

In my world, even an "efficient" allocation of wages is suspect. It depends on the currency you use to measure efficiency (and the accuracy with which you can actually measure externalized costs, especially future costs). I suppose it has to do with the whole philosophy background and recognition of the contingency of human identity and values and the fact that demand is function of all sorts of external factors. Demand can indeed be manufactured, (just ask any advertisier that targets children, the elderly and the lonley) and individuals often act against their best interests. Though social science is a lot easier, I will admit, when you presume rational action and measure utility in current dollars.

[Joan A. Conway]

So goes the popular vote, so goes the election college.

Because the political sentiments of diverse people, who inhabit larger cities is more secular than the remote smaller cities across the country that are mainly religious minded white folks, there is an obvious division in politics.

This has always been the case in cities, like Chicago, that bordered on anarchy during the turn of the last century.

But this time around, we are not dealing with just Europeans, we have populated people from all over the world in our country. And like England, we are dying! Our American culture as we once knew it is going by the wayside to incorporate other world cultures. The most efficient way to handle it is to base it on the almight dollar and secularism, and once that is accomplished, we will move to purify the diverse groups in the good old protestant way, "The Pilgram's Way."

We will gather together to ask the lord's blessing for a diverse Thanksgiving Day.