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Reading Justice Brennan: Is There a 'Right' to Dissent?

The Hastings Law Journal, Vol. 50, No. 4

Posted: 6 Sep 1999  

Rory K. Little

University of California Hastings College of the Law

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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 anniversay. The essay suggests that counstitutional 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.

The essay includes a brief discussion of current judicial disciplinary charges that have been filed against a California appellate judge, Presiding Justice J. Anthony Kline, because he dissented from a majority judgment compelled (he conceded) by California precedent. Those charges should be dropped.

(In August 1999 the charges against Justice Kline were in fact dropped, with the Commission on Judicial Performance stating that judges "must be able to [dissent] free from fear of discipline for the free expression of their ideas.")

Notes: This is a description of the article and not the actual abstract.

Suggested Citation

Little, Rory K., Reading Justice Brennan: Is There a 'Right' to Dissent?. The Hastings Law Journal, Vol. 50, No. 4. Available at SSRN: https://ssrn.com/abstract=174348

Rory K. Little (Contact Author)

University of California Hastings College of the Law ( email )

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