While previous work on Supreme Court decision making focuses solely on the outcome of cases, Pamela C. Corley tackles the content of Supreme Court concurring opinions to show the reasoning behind each justice s decision. Using both qualitative and quantitative methods of analysis, Concurring Opinion Writing on the U. Supreme Court offers a rich and detailed portrait of judicial decision making by studying the process of opinion writing and the formation of legal doctrine through the unique lens of concurrences.
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In fact, there are many sound reasons why judges at all levels decide they must provide their dissenting views. The duty of a judge has long been advanced as the basis for submitting an individual opinion. Such a practice is personal to each individual judge. Although believing it would be unpopular, Judge Blue felt it was his duty to dissent in Miller v. State , So. The Tampa Tribune wrote an editorial praising the dissent, and the state did not retry the case as permitted by the majority.
Law is not science or math. You cannot prove your answer. Consequently, most dissents are expressions of honest disagreements about what the law is in a particular case. Other times, dissents acknowledge the law applied in the majority opinion is the accepted law, but propose that it should not be. In fact, sometimes there is a close correlation between dissents and concurring opinions because judges who desire to explain what the law should be can do so in either a concurrence or dissent.
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Not surprisingly, social issues, such as discrimination cases and death penalty cases, bring out eloquent, forceful dissents, sometimes read from the bench. Attorney General of Alabama , F. It is about the tradition of American citizens from the inception of our democracy to value the constitutionally protected right to be left alone in the privacy of their bedrooms and personal relationships. United States , U.
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Perhaps nothing stirs the passion more than disputes over presidential powers during wartime. Look at the dissents in Boumediene et al. Bush , S. Separate and unequal was exactly what many white people wanted in many parts of the country. Board of Education , U. Remarkably, there were nine special opinions, seven of which concurred in part and dissented in part. The court again went en banc to deny the motion for certification to the Florida Supreme Court.
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Two concurring opinions were filed; two opinions concurring in part and dissenting in part were filed; and one dissent was filed and joined in by another judge. Sometimes it is hoped that seeing the reasoning of the dissent on paper will swing another judge over to that view. This is exactly what happened in Osceola Co.
Best Diversified, Inc. Weekly D Fla. Judge Pleus wrote the original opinion, with Judge Griffin writing a marvelously colorful and quotable dissent. In fact, it may be the least evidence to support a verdict of any size that I have ever seen. Judge Sharp wrote a concurrence saying she had the right to change her mind.
The Supreme Court Opinion Writing Database
Often there are purely pragmatic reasons for authoring a dissenting opinion. A well reasoned dissent will lead the author of the majority opinion to refine and clarify her initial circulation. A dissent also may be the result of an en banc decision reaching a contrary result to the panel decision. That was the case in State v. Colitto , So. Indeed, one of our favorite dissents was issued by Ninth Circuit Court of Appeals judges in a case implicitly decided under that doctrine. Laidlaw Transit Servs.
An en banc decision in which the original panel decision never was released led to a sharply divided court in M. The court was so divided that the result was a tie vote, mandating an affirmance of the conviction under Florida Rule of Appellate Procedure 9. In addition to a concurring opinion, four judges wrote dissenting opinions, sometimes joined in by other judges and sometimes not. Thereafter, the validity of the same Miranda warning came before a three-judge panel in Powell v. Vilches , So. Five years after she issued that dissent, her dissenting view was adopted by the high court, which specifically relied on her earlier dissent.
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There is, then, good reason for an intermediate judge to propound the dissenting viewpoint. Ostendorf , So. Furthermore, the issue may be one which inevitably will arise again, and the dissenting justice may be laying out a framework for changing the law. It ultimately may become the law, although possibly too late to help the losing party in the original case. So, why a dissent in a decision by the court of last appeal? Sometimes the dissent is aimed squarely at the legislative branch, in hopes it will change the law at issue.
That is exactly what the dissenting justices did in Delgado v. Sometimes the dissent is aimed at a future court. Ferguson , U. In respect of civil rights, all citizens are equal before the law. Regents v.
Concurring and Dissenting Opinion
Bakke , U. Seattle School District , S. He did so in responding to the dissent in that case:. But I am quite comfortable in the company I keep. Justice Thomas also remarked on the force that a dissent can have for future advocates, noting that this view of the Constitution was the rallying cry for the lawyers who litigated Brown.
Hardwick , U.