Rory K. Little (UC Hastings Law) has posted Reading Justice Brennan: Is There a ‘Right’ to Dissent? in The Hastings Law Journal, Vol. 50, No. 4, on SSRN. Here is the abstract:
While there is a great deal of literature addressing the pros and cons of dissenting judicial opinions, no one has asked whether judges in a multi-judge court have a “right” to dissent. A “complete” right to dissent would include not just rights to (a) privately express one’s disagreement to one’s colleagues; and (b) have the fact that one does not join a majority opinion publically noted; but also (c) a right to have a written expression of one’s dissenting rationale published in company with the majority’s opinion. Justice Brennan delivered a wonderful “Defense of Dissents” in 1985 (Hastings Law Journal); not surprisingly, perhaps, so has Justice Scalia (Journal of Supreme Court History, 1994). This essay is introductory to a reprint of Justice Brennan’s lecture, celebrating the Hastings Law Journal’s 50th anniversary. The essay suggests that a constitutional foundation for a “right to dissent” may be found in the First Amendment (discussing “compelled silence” cases), as well as in the core meaning of the Article III terms “court” and “judge.” More historical investigation needs to be done on the historical understanding of judges and their ability to issue dissents. Moreover, a “right to issue a dissenting opinion” does not necessarily imply a “right to defy precedent.” The concepts are separable, perhaps properly so. Nevertheless, the constitutional claim for a right to dissent is not insubstantial.
Recommended.
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