But even Marshall, during his long tenure as Chief Justice, ultimately dissented on several occasions and once concurred with a separate opinion.24 We continue in that middle way today. Our appellate courts generally produce a judgment or opinion for the court. In that respect, we bear some resemblance to the highly institution-minded civil law judges, although our judges individually claim authorship of most of the opinions they publish. In tune with the British or common law tradition, however, we place no formal limit on the prerogative of each judge to speak out separately.
To point up the difference between individual and institutional modes of judging, I have drawn upon a 1989 letter from a civilian jurist.25 The letter came from a member of the Conseil d’Etat, the illustrious body created by Napoleon that still serves, among other functions, as Supreme Administrative Court for France. The conseiller who wrote to me had observed, together with several of his colleagues, an appellate argument in the District of Columbia Circuit. The appeal was from a criminal conviction; the prime issue concerned the Fifth Amendment’s double jeopardy ban.26 When the case was decided, I sent our French visitors copies of the slip sheet. It contained the panel’s judgment, and three opinions, one per judge. I paraphrase the conseiller’s reaction:
The way the decision is given is surprising for us according to our standards. The discussion of theory and of the meaning of precedents is remarkable. But the divided opinions seem to me very far from the way a judgment should issue, particularly in a criminal case. The judgment of a court should be precise and concise, not a discourse among professors, but the order of people charged to speak in the name of the law, and therefore written with simplicity and clarity, presenting short explanations. A judgment that is too long indicates uncertainty.
At the same time, it is very impressive for me to see members of a court give to the litigants and to the readers the content of their hesitations and doubts, without diminishing the credibility of justice, in which the American is so confident.27
The conseiller seems at first distressed, even appalled, at our readiness to admit that legal judgments (including constitutional rulings) are not always clear and certain. In his second thought, however, the conseiller appears impressed, touched with envy or admiration, that our system of justice is so secure, we can tolerate open displays of disagreement among judges about what the law is.28
But overindulgence in separate opinion writing may undermine both the reputation of the judiciary for judgment and the respect accorded court dispositions. Rule of law virtues of consistency, predictability, clarity, and stability may be slighted when a court routinely fails to act as a collegial body.29 Dangers to the system are posed by two tendencies: too frequent resort to separate opinions and the immoderate tone of statements diverging from the position of the court’s majority.
Regarding the first danger, recall that “the Great Dissenter,” Justice Oliver Wendell Holmes, in fact dissented less often than most of his colleagues.30 Chief Justice Harlan F. Stone once wrote to Karl Llewellyn (both gentlemen were public defenders of the right to dissent): “You know, if I should write in every case where I do not agree with some of the views expressed in the opinions, you and all my other friends would stop reading my separate opinions.”31 In matters of statutory interpretation, Justice Louis D. Brandeis repeatedly cautioned: “It is more important that the applicable rule of law be settled than that it be settled right.” “This is commonly true,” Brandeis continued, “even where the error is a matter of serious concern, provided correction can be had by legislation.”32 Revered constitutional scholar Paul A. Freund, who clerked for Justice Brandeis, recalled Justice Cardozo’s readiness to suppress his dissent in common law cases (the Supreme Court had more of those in pre-Erie33 days), so that an opinion would come down unanimous.34
Separate concurrences and dissents characterize Supreme Court decisions to a much greater extent than they do court of appeals three-judge panel decisions. In the District of Columbia Circuit, for example, for the statistical year ending June 1992, the court rendered 405 judgments in cases not disposed of summarily; over 86 percent of those decisions were unanimous.35 During that same period, the Supreme Court decided 114 cases with full opinions; only 21.9 percent of the decisions were unanimous.36 A reality not highlighted by a press fond of separating Carter from Reagan/Bush appointees37 accounts in considerable measure for this difference: the character of cases heard by courts of appeals combines with our modus operandi to tug us strongly toward the middle, toward moderation and away from notably creative or excessively rigid positions.38 (The tug is not so strong, however, as to make a proposal I recently advanced acceptable. At a meeting of U.S. court of appeals judges in February 1993, I suggested that when panels are unanimous, the standard practice should be to issue the decision per curiam, without disclosing the opinion writer. That would encourage brevity, I thought, and might speed up dispositions. Few of the judges in attendance found the idea appealing.)
Concerning the character of federal cases, unlike the Supreme Court, courts of appeals deal far less frequently with grand constitutional questions than with less cosmic questions of statutory interpretation or the rationality of agency or district court decisions. In most matters of that variety, as Justice Brandeis indicated, it is best that the matter be definitively settled,39 preferably with one opinion. Furthermore, lower court judges are bound more tightly by Supreme Court precedent than is the High Court itself.
Turning to the way we operate, I note first that no three-judge panel in a circuit is at liberty to depart from the published decision of a prior panel; law of the circuit may be altered only by the court en banc.40 To ensure that each panel knows what the others are doing, the District of Columbia Circuit, and several other federal circuit courts of appeals, circulate opinions to the full court, once approved by a panel, at least a week in advance of release.41
Second, in contrast to district judges, who are the real power holders in the federal court system—lords of their individual fiefdoms from case filing to first instance final judgment—no single court of appeals judge can carry the day in any case. To attract a second vote and establish durable law for the circuit, a judge may find it necessary to moderate her own position, sometimes to be less bold, other times to be less clear.42 We can listen to and persuade each other in groups of three more effectively than can a larger panel.
On the few occasions each year when we sit en banc—in the District of Columbia Circuit, all twelve of us when we are full strength—I can appreciate why unanimity is so much harder to achieve in Supreme Court judgments. Not only do the Justices deal much more often with constitutional questions, where, in many cases, only overruling or constitutional amendment can correct a mistake. In addition, one becomes weary after going round the table on a first ballot. It is ever so much easier to have a conversation—and an exchange of views on opinion drafts—among three than among nine or twelve.43
In writing for the court, one must be sensitive to the sensibilities and mind-sets of one’s colleagues, which may mean avoiding certain arguments and authorities, even certain words.44 Should institutional concerns affect the tone of separate opinions, when a judge finds it necessary to write one?
I emphasize first that dissents and separate concurrences are not consummations devoutly to be avoided. As Justice William J. Brennan said in thoughtful defense of dissents: “None of us, lawyer or layman, teacher or student, in our society must ever feel that to express a conviction, honestly and sincerely maintained, is to violate some unwritten law of manners or decorum.”45 I question, however, resort to expressions in separate opinions that generate more heat than light. Consider this sample from an April 1991 District of Columbia Circuit decision. The dissenter led off: “Running headlong from the questions briefed and argued before us, my colleagues seek refuge in a theory as novel as it is questionable. Unsupported by precedent, undeveloped by the court, and unresponsive to the facts of this case, the . . . theory announced today has an in
auspicious birth.”46 That spicy statement, by the way, opposed an en banc opinion in which all of the judges concurred, except the lone dissenter.
It is “not good for public respect for courts and law and the administration of justice,” Roscoe Pound decades ago observed, for an appellate judge to burden an opinion with “intemperate denunciation of [the writer’s] colleagues, violent invective, attributi[on]s of bad motives to the majority of the court, and insinuations of incompetence, negligence, prejudice, or obtuseness of [other judges].”47 Yet one has only to thumb through the pages of current volumes of United States Reports and Federal Reporter Second to come upon condemnations by the score of a court or colleague’s opinion or assertion as, for example, “folly,”48 “ludicrous,”49 “outrageous,”50 one that “cannot be taken seriously,”51 “inexplicable,”52 “the quintessence of inequity,”53 a “blow against the People,”54 “naked analytical bootstrapping,”55 “reminiscent . . . of Sherman’s march through Georgia,”56 and “Orwellian.”57
“[L]anguage impugning the motives of a colleague,” Senior Third Circuit Judge Collins J. Seitz recently commented, may give momentary satisfaction to the separate opinion writer, but “does nothing to further cordial relationships on the court.”58 Judge Seitz counseled “waiting a day”—I would suggest even a week or two—“before deciding whether to send a biting response.”59
The most effective dissent, I am convinced, “stand[s] on its own legal footing”;60 it spells out differences without jeopardizing collegiality or public respect for and confidence in the judiciary. I try to write my few separate opinions each year as I once did briefs for appellees—as affirmative statements of my reasons, drafted before receiving the court’s opinion, and later adjusted, as needed, to meet the majority’s presentation. Among pathmarking models, one can look to Justice Curtis’ classic dissent in the Dred Scott case,61 and, closer to our time, separate opinions by the second Justice John Marshall Harlan.62
Taking a comparative sideglance, I find instructive the March 5, 1992, judgment of the Supreme Court of Ireland in the case of Attorney General v. X.63 The case involved a fourteen-year-old girl who, it was alleged, had been raped by the father of a school friend and had become pregnant. She and her parents had gone to England to secure an abortion. But they promptly returned home when notified that the attorney general had obtained an order from the High Court (the court of first instance) in Ireland enjoining their travel and its purpose. At issue was a clause of the Constitution of Ireland that read: “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”64
In fact, no implementing laws had been passed, so the courts were called upon to interpret the Constitution directly. The Supreme Court, composed of five judges, voted four to one to set aside the High Court’s February 17, 1992, injunction.65 Each judge spoke separately, but the majority agreed that, in view of the documented “real and substantial” risk that the girl would take her own life, termination of her pregnancy was permissible, even in Ireland itself. In so ruling, the Chief Justice referred to precedent calling upon judges to bring to bear on their judgments the instruction in the Constitution’s preamble that the fundamental instrument of government was adopted by the people “to promote the common good, with due observance of prudence, justice and charity so that the dignity and freedom of the individual might be assured.”66 Those concepts and judicial interpretations of them, the Chief Justice said, “may gradually change or develop as society changes and develops.”67
The dissenting Justice spent no energy characterizing his colleagues’ opinions as “activist” or “imperial.”68 He simply stated affirmatively his view that the evidence did not justify overturning the injunction.69 “Suicide threats,” he reasoned, “can be contained.”70 “The choice,” he said, was “between the certain death of the unborn life and a feared substantial danger . . . but no degree of certainty of the mother’s death by way of self-destruction.”71 The Constitution’s “equal right” provision, he concluded, required the judiciary to prevent the certain death, not the one that could be guarded against.
I did not select this example as a springboard to comparison of positions on access to abortion under constitutional prescriptions and legal regimes here and abroad.72 I chose Attorney General v. X only to demonstrate that even in the most emotion-laden, politically sensitive case, effective opinion writing does not require a judge to upbraid colleagues for failing to see the light or to get it right.73
Concerned about the erosion of civility in the legal profession, the Seventh Circuit, commencing in the fall of 1989, conducted a “study and investigation into litigation practices and the attending relationships among lawyers, among judges, and between lawyers and judges.”74 The Final Report of the committee in charge of the study, released in June 1992, urges judges to set a good example by staying on the high ground. Specifically, the report calls on judges to avoid “disparaging personal remarks or criticisms, or sarcastic or demeaning comments about another judge,” and instead to “be courteous, respectful, and civil in opinions, ever mindful that a position articulated by another judge generally is the result of that judge’s earnest effort to interpret the law and the facts correctly.”75 To that good advice, one can say “amen.”
II. Measured Motions in Third Branch Decisionmaking
Moving from the style to the substance of Third Branch decisionmaking, I will stress in the remainder of these remarks that judges play an interdependent part in our democracy. They do not alone shape legal doctrine but, as I suggested at the outset, they participate in a dialogue with other organs of government, and with the people as well.76 “Judges do and must legislate,” Justice Holmes “recognized without hesitation,” but “they can do so,” he cautioned, “only interstitially; they are confined from molar to molecular motions.”77 Measured motions seem to me right, in the main, for constitutional as well as common law adjudication. Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable.78 The most prominent example in recent decades is Roe v. Wade.79 To illustrate my point, I have contrasted that breathtaking 1973 decision with the Court’s more cautious dispositions, contemporaneous with Roe, in cases involving explicitly sex-based classifications,80 and will further develop that comparison here.
The seven-to-two judgment in Roe v. Wade81 declared “violative of the Due Process Clause of the Fourteenth Amendment” a Texas criminal abortion statute that intolerably shackled a woman’s autonomy; the Texas law “excepted from criminality only a life-saving procedure on behalf of the pregnant woman.”82 Suppose the Court had stopped there, rightly declaring unconstitutional the most extreme brand of law in the nation, and had not gone on, as the Court did in Roe, to fashion a regime blanketing the subject, a set of rules that displaced virtually every state law then in force.83 Would there have been the twenty-year controversy we have witnessed, reflected most recently in the Supreme Court’s splintered decision in Planned Parenthood v. Casey?84 A less encompassing Roe, one that merely struck down the extreme Texas law and went no further on that day, I believe and will summarize why, might have served to reduce rather than to fuel controversy.
In the 1992 Planned Parenthood decision, the three controlling Justices accepted as constitutional several restrictions on access to abortion that could not have survived strict adherence to Roe.85 While those Justices did not closely consider the plight of women without means to overcome the restrictions, they added an important strand to the Court’s opinions on abortion—they acknowledged the intimate connection between a woman’s “ability to control her reproductive life” and her “ability . . . to participate equally in the economic and social life of the Nation.”86 The idea of the woman in control of her destiny and her place in society87 was less prominent in the Roe decision itself, which coupled with the rights of the pregnant woman the free exercise of her phy
sician’s medical judgment.88 The Roe decision might have been less of a storm center89 had it both homed in more precisely on the women’s equality dimension of the issue and, correspondingly, attempted nothing more bold at that time than the mode of decisionmaking the Court employed in the 1970s gender classification cases.
In fact, the very Term Roe was decided, the Supreme Court had on its calendar a case that could have served as a bridge, linking reproductive choice to disadvantageous treatment of women on the basis of their sex. The case was Struck v. Secretary of Defense;90 it involved a captain the Air Force sought to discharge in Vietnam War days. Perhaps it is indulgence in wishful thinking, but the Struck case, I believe, would have proved extraordinarily educational for the Court and had large potential for advancing public understanding. Captain Susan Struck was a career officer. According to her commanding officer, her performance as a manager and nurse was exemplary.91 Captain Struck had avoided the drugs and the alcohol that hooked many service members in the late 1960s and early 1970s,92 but she did become pregnant while stationed in Vietnam. She undertook to use, and in fact used, only her accumulated leave time for childbirth. She declared her intention to place, and in fact placed, her child for adoption immediately after birth. Her religious faith precluded recourse to abortion.93
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