The Yale Law Journal

VOLUME
121
2011-2012
Forum

I Say Dissental, You Say Concurral

10 Apr 2012
Alex Kozinski & James Burnham

After losing an en banc vote back in 1960, Judge Clark penned a dissental mildly chiding the Second Circuit for having failed to take the case en banc.1 Judge Friendly took umbrage, impugning the legitimacy of a practice that enabled

  any active judge [to] publish a dissent from any decision, although he did not participate in it and the Court has declined to review it en banc thereafter, a practice which seems to us of dubious policy especially since, if the issue is of real importance, further opportunities for expression will assuredly occur.2  

One of Judge Friendly’s successors, Judge Pooler, recently reiterated his complaint. She disparaged dissentals as “oddities” with “as much force of law as if those views were published in a letter to the editor of [the authors’] favorite local newspaper.”3 Judge Pooler lamented:

  the unsuccessful request for an en banc rehearing becomes an occasion for any active judge who disagrees with the panel to express a view on the case even though not called upon to decide it. By employing the simple tactic of calling for an en banc poll, active judges provide themselves with an opportunity to opine on a case that was never before them.4  

This practice, she concluded, works “mischief” by undermining the original panel’s message with “further advisory opinions” that are “unnecessary” and only “muddy[] the waters.”5

Despite such objections, dissentals have persisted, even flourished. It’s time we put the legitimacy debate behind us and embraced the dissental as an established and useful part of the appellate process.

* * *

There is a significant body of thoughtful literature about why judges in the American tradition exercise the right of public dissent. Justice Brennan described dissents as “appeal[s] to the future,” and argued that “[t]hrough dynamic interaction among members of the present Court and through dialogue across time with the future Court, we ensure the continuing contemporary relevance and hence vitality of the principles of our fundamental charter.”6 Chief Justice Hughes called dissents “appeal[s] to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.”7 Justice Cardozo described the dissenter as “the gladiator making a last stand against the lions.”8 Indeed, the seeds planted by dissenting judges sometimes germinate and grow into stout trees.9

Among the recognized legitimate reasons for dissenting are the following: to encourage a higher court to reverse; to dissuade a coordinate court from following the majority; to express a hope that the same court in the future will overrule today’s majority; to provide an educational tool to students of the law and the public; and to sound a call to arms to the political branches.10 No one has suggested that the Citizens United or Ledbetter dissents are “of dubious policy,” “unnecessary,” or that they work “mischief” or “muddy[] the waters.” Quite the contrary.11 Justice Brandeis was beatified for Olmstead;12 Justice Harlan, canonized for Plessy.13

A dissent is a public disagreement with the actions of a body of which you are a member. It is a declaration that you would do something different—usually the exact opposite of what the group is doing. Dissents are most commonly associated with published opinions, but they certainly are not so limited. There are dissents from procedural orders,14 from jurisdictional orders,15 from dismissals for mootness,16 from the grant or denial of certificates of probable cause,17 from certificates of appealability,18 and from referral of a case to a state court for resolution of a state-law issue19—to name just a few. In fact, there’s nothing a collegial court does that is so trivial it does not occasionally give rise to a dissent—yet no one bats an eyelash. Why then the apoplexy about dissentals?

Dissental detractors, like Judge Friendly, claim that dissentals are illegitimate because the authors were not members of the panel that originally decided the case. But that misses the point: The judge is not dissenting from the panel opinion, but from the order of the full court declining to take the case en banc. That criticism will necessarily involve a discussion of the merits, but the same is true of an en banc call. If it were truly illegitimate for an off-panel judge to criticize the panel’s opinion, then en banc calls could only be made by the judges who decided the case—the judicial equivalent of the fox guarding the henhouse.

Odd as it may seem, that was the law once (at least in the Ninth Circuit), and it provoked the first-ever dissental, authored by Judge Denman.20 The law was an ass in that regard21 and was eventually changed.22 Everyone now accepts that off-panel judges can disturb a panel decision by writing internal memos urging that it be reheard en banc. No one claims such judges are meddling or that they’re insufficiently familiar with the facts or law. Off-panel judges have to know the case as well as or better than the panel judges if they hope to pull off a successful en banc call. En banc memos are usually as sophisticated as the panel opinion, sometimes more so. If the call is unsuccessful, they get turned into equally sophisticated dissentals.

Dissental naysayers also seem to argue that it’s inappropriate to dissent from a discretionary decision, such as whether to go en banc. But orders denying discretionary relief are no less subject to reasonable disagreement than those resolving the merits. Nothing in the law is more discretionary than the denial of certiorari, yet the Justices routinely register certsents,23 sometimes with immediate and dramatic effect.24 Justice White filed certsents whenever he believed there was a conflict in the circuits.25 Justices Brennan and Marshall certsented in all capital cases.26 Certsents occasionally prompt a response.27 Twenty-one of the twenty-three Justices who have served on the Court in the last four decades have authored certsents.28 These go back to at least 1938 when Justices Black and Reed certsented, without opinion, in Mooney v. Smith.29 There have been hundreds in the intervening seven decades. While Justice Stevens has spoken out against certsents,30 he routinely dissented from orders refusing to file certiorari petitions of vexatious litigants unless they paid the filing fee.31 To each his own.

By our count, 45 judges have filed some 290 dissentals in over 230 cases in the Ninth Circuit. This includes 41 of the 71 who have served as active judges since 1970. 32 And all but 10 of those 71 have joined dissentals written by others.34 Hundreds more dissentals have been filed in the courts of appeals nationwide.35 Some judges are so dissental-happy they file two in the same case.36

Dissentals often generate heated debate.37 Invariably, they address issues that are of great moment at the time.38 Earlier this year, the Seventh Circuit refused en banc rehearing in United States v. Holcomb, but every single one of the court’s active judges authored or joined a concurral or dissental.39 The three opinions (one concurral and two dissentals) grapple fully with the merits and each other. But for their captions, they look, smell, walk, and talk like the opinions of an en banc court. It would be hard to dispute that the Seventh Circuit had a de facto en banc in Holcomb. Chief Judge Easterbrook’s concurral was, in fact, nominated for the 2011 Green Bag Exemplary Legal Writing contest under the category “Opinions for the Court” rather than under “Concurrences, Dissents, Etc.”40 Can anyone say with a straight face that these three opinions, involving every active judge of the Seventh Circuit, added nothing useful to the law?

Proliferation and institutionalization of dissentals makes perfect sense. As appellate courts grow, each judge has less of an opportunity to sit on the panels that decide the burning issues of the day. Dissentals have become a way for judges to express a view on the merits of important cases decided by their courts when the luck of the draw does not assign them to the original three-judge panel. There is every indication that dissentals serve an important function and are taken seriously by courts, the public, the academy, and the legal profession:

  • They are cited by the Supreme Court in its opinions.41
  • Supreme Court Justices ask questions about them during oral argument.42
  • They are relied upon by Supreme Court Justices in totally different cases.43
  • They are considered by other courts in deciding whether to follow the panel opinion.44
  • “[T]he Solicitor General of the United States and private litigants quote from rehearing dissents when petitioning or fending off arguments . . . .”45
  • “Several rehearing dissents have promoted the development of the law by stimulating law professors to write articles and law students to write commentaries.”46
  • They are cited in casebooks and treatises.47
  • They have been authored by Supreme Court Justices in their former lives as circuit judges.48
  • They are cited by Congress.49
  • They come up at confirmation hearings.50
  • They are the subject of commentary by the press,51 are occasionally glorified by Hollywood,52 and are routinely blogged about.53

In the days when federal courts of appeals were much smaller, en banc activity was relatively rare. This is because most judges participated in a significant number of key decisions, and this usually kept circuit law in line with the views of a majority of the court’s active judges. But as courts have grown, outlier panels happen more frequently, commensurately increasing the number of en banc calls. During the course of those internal debates, off-panel judges develop views—often strong and considered views—as to how the case should be decided. Those views might coincide with the ones expressed in the panel opinion, dissent, or concurrence, or they may be quite different.54

Judge Pooler is certainly right that dissentals are “advisory opinions,” in the sense that they do not bind courts or litigants, but the same can be said of every dissent and most concurrences ever written. It can also be said for the many other sources of inspiration and guidance courts look to, such as decisions by courts of coordinate or inferior jurisdiction, restatements, treatises, law review articles, biblical references, the Talmud, the Koran, Roman law, Hammurabi’s Code, the Napoleonic Code, Gratian’s Decretum, Saint Thomas Aquinas, Sun Tzu, and decisions of various international tribunals—to name just a few. Dissentals and concurrals fall comfortably within Bryan Garner’s definition of persuasive precedent.55

In addition to enriching the law, dissentals give judges an opportunity to focus public scrutiny on a particular case. The fact that a number of appellate judges took pains to voice their public disagreement with an opinion of their court is significant. It no doubt increases the likelihood of certiorari review56 and stimulates change through the political process.57

Majority opinions are hardly sitting ducks for the criticism dissentals may heap on them. If a panel majority finds that a dissental scores some valid points, it can modify its opinion to eliminate the problem, something that happens regularly in the Ninth Circuit. Indeed, fear that internal criticisms will be taken public often causes judges to moderate outlier opinions so as to present a smaller target for public criticism and possible certiorari. One of us (yes, the hot one) is even aware of a case where the panel withdrew its opinion and reversed the result, after winning the en banc vote, in the teeth of a stinging dissental. And, of course, judges who think the dissental is wrong or unfair can file a concurral.58 Not that it always helps.59

Dissentals don’t create a substantial additional burden on the judiciary. It’s easy to convert an en banc call to a dissental and an en banc opposition to a concurral. Moreover, if a dissental levels fair criticisms that the panel opinion does not answer, the opinion ought to be amended to take the new arguments into account. The law and the parties will suffer if panel majorities fail to modify their opinions in the teeth of cogent criticism. And if the panel believes that the opinion already meets all legitimate criticism, it should be content to leave well enough alone.

Finally, there seem to be judges who believe that some dissentals are legitimate while others are not. For example, Judge Berzon once argued that dissentals “pose a dilemma for those who believe the original opinion correct,” give “a distorted presentation of the issues,” and create “the impression of rampant error in the original panel opinion.”60 She has nonetheless filed her fair share of dissentals.61 Even Judge Friendly jumped on the dissental bandwagon.62 We’ve read many dissentals, long and short, and see no principled way of distinguishing those that work “particular mischief” from those that are swell.63

* * *

“Cases arguably warranting en banc review are those in which the stakes are unusually high or the law is especially unclear.”64 It does honor to the law, promotes justice, and serves the interests of an informed public when citizens learn that appellate judges have given difficult and important cases exacting scrutiny—not just one judge or even the three-judge panel, but an entire court of appeals.

As Judge Clark put it in the case that started out this essay, “I do believe the court gains standing by encouraging free and thorough canvassing of these issues without the deadening influence of constraining restrictions.”65 Dissentals are here to stay. Get over it.

Alex Kozinski is the Chief Judge of the United States Court of Appeals for the Ninth Circuit and a longtime dissentaler. See, e.g., Int’l Olympic Comm. v. S.F. Arts & Athletics, 789 F.2d 1319, 1320 (9th Cir. 1986), spurned by 483 U.S. 522 (1987).

James Burnham is a former law clerk to Chief Judge Kozinski who survived his two-year clerkship from June 2009 to June 2010, but just keeps coming back for more. The views herein do not necessarily reflect the views of James’s current employer, Jones Day, on the merits of dissentals or concurrals (or anything else).

Preferred citation: Alex Kozinski & James Burnham, I Say Dissental, You Say Concurral, 121 Yale L.J. Online 601 (2012), http://yalelawjournal.org/forum/i-say-dissental-you-say-concurral.

[Editor's note - For appendices cataloging certsents and dissentals in the Ninth Circuit, please see the PDF version of this Essay.]