In the common law world, judges are required to write opinions that justify their decisions. The holdings and reasoning in these opinions then become the law. Generally speaking, there are two sorts of opinions. First, there are opinions offered by the court that state its decision and the reasons for it. Second, there are dissents, which explain why the dissenting judge cannot join the majority’s opinion. There is also, however, an almost completely forgotten, third kind of opinion that is worth thinking about: a dubitante<\/i> or dubitans<\/i>.<\/p>\n
Cardozo called the dissent an appeal to the brooding spirit of the law. His idea was that the dissenter’s role is to sound the alarm against a law that is going off course and call it back to a better way. The idealized dissent is one where a judge calls forward to future courts, which ultimately hear his or her voice and reverse the course of the law. There are a number of famous dissents that follow this pattern, such as Holmes’s dissent in Lochner<\/i>, a case striking down economic regulations as unconstitutional. Holmes famously argued that the constitution does not enact Herbert Spencer’s Social Statistics<\/i>, and two generations later the Supreme Court agreed with him and reversed Lochner<\/i>. Another example is the dissent of Justice Harlan in Plessy v. Ferguson<\/i>, the case upholding racial segregation laws from constitutional attack. Justice Harlan insisted that “in the view of the constitution there is in this country no superior, dominant, ruling class of citizens. There is no caste here.” Fifty-eight years later the Supreme Court reversed Plessy<\/i>.<\/p>\n
There is a powerful mystique to the dissent. The image of the lone voice of integrity and the Jeremiah calling forward to a more enlightened future has an undeniable attraction. Unfortunately, as any lawyer can tell you, the dissent is a powerful myth that more often than not becomes a tired cliche in practice. Most dissents are not worth reading, and as often as not they represent little more than exercises in personal vanity by the judges writing them. To be sure, there are still dissents that eventually get to live out the heroic dream articulated by Cardozo, and there are even dissents that serve wilier, more pedestrian purposes, such as Justice Brennan’s thinly veiled instructions to more liberal lower court judges on how to circumvent conservative court holdings. The sad truth, however, is that the vast proliferation of judicial dissents in the modern era is mainly sound and fury signifying nothing.<\/p>\n
The dubitans<\/i> represents a humbler approach to judicial disagreement. Usually there is no written opinion accompanying a dubitans<\/i> but only the note “dubitante<\/i>” next to the name of the judge. This indicates that the judge joins in the majority opinion, but that there are certain aspects of it that he doubts or is unsure of. I am a bit foggy on the history, but I believe that there was a time when dubitante<\/i> could even take the form of a holding, with an appellate court simply ruling that they did not know the proper answer to the case brought before them, and hence there was no reason to disturb the lower court’s decision. The dubitans<\/i> is not a jeremiad or some prescient call to a better future. Rather, it is a way for a judge to indicate that he or she reaches her decision “with fear and trembling” and acknowledges the inherent appeal and power of competing, even if ultimately rejected, approaches.<\/p>\n
The dubitans<\/i> strikes me as a useful way of managing religious questions or ecclesiastical disagreements. The binary of holding and dissent suggests that the only response to doubt or disagreement is articulate abstention, a withdrawing of oneself from the court and a seeking of solidarity with, at best, some imagined future. To be sure, there are times when dissent is called for, but I suspect that for many (perhaps most) questions or disagreements in the household of God the dissent is too blunt an instrument. A dubitans<\/i> is an affirming vote, but one that acknowledges the uncertainty of the hand being raised.<\/p>\n","protected":false},"excerpt":{"rendered":"
In the common law world, judges are required to write opinions that justify their decisions. The holdings and reasoning in these opinions then become the law. Generally speaking, there are two sorts of opinions. First, there are opinions offered by the court that state its decision and the reasons for it. Second, there are dissents, which explain why the dissenting judge cannot join the majority’s opinion. There is also, however, an almost completely forgotten, third kind of opinion that is worth thinking about: a dubitante or dubitans.<\/p>\n","protected":false},"author":10,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-2368","post","type-post","status-publish","format-standard","hentry","category-corn"],"jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/posts\/2368","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/comments?post=2368"}],"version-history":[{"count":0,"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/posts\/2368\/revisions"}],"wp:attachment":[{"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/media?parent=2368"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/categories?post=2368"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/timesandseasons.org\/index.php\/wp-json\/wp\/v2\/tags?post=2368"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}