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Dissenting Without Opinion:
It used to be common for U.S. Supreme Court Justices to dissent from opinions of the Court without writing or joining a separate dissenting opinion; the U.S. Reports simply would note that the Justice dissents. The practice is still common in some courts, but is quite rare for the modern U.S. Supreme Court.

  So here's the question: What is the most recent case in which a U.S. Supreme Court Justice dissented from a majority merits opinion of the Court without either filing or joining a dissenting opinion? The most recent case I know of is Minnesota v. Olson, from 1990, in which Rehnquist and Blackmun dissented without opinion, but I wonder if there are more recent examples.
Paul Rosenzweig (mail):
If you are counting "I dissent for the reasons stated by the lower court" then a more recent instance would be Rhenquist in US v. Hubbel 530 US 27 (2000)
8.15.2006 6:30pm
Oh my word (mail):
Not sure about the most recent one, but Justice Holmes once opined that dissents shouldn't be accompanied by opinions. He said something to the effect of, "If I can't convince four others to vote my way, I ought to just keep my damn mouth shut."
8.15.2006 6:37pm
David Krinsky (mail):
Looks like more recent examples include Reiter v. Cooper, 507 U.S. 258 (1993) (Blackmun, J., dissenting without opinion) and United States v. Energy Resources Co., Inc., 495 U.S. 545 (1990) (again Blackmun).

(This is from a quick search of Lexis for "'delivered the opinion of the court' /p dissented", which seems to pull up appropriate syllabus lines--the usual formula when there is an opinion is "filed a dissenting opinion." I can't guarantee that this technique catches everything, though.)
8.15.2006 7:15pm
The Divagator (mail) (www):
That Holmes quotation is classic...thanks for sharing.
8.15.2006 8:06pm
OrinKerr:
Can you locate the source for that quote, "Oh my word"? Holmes is rather famous for his dissents, several of which later became the law, so it would be quite ironic if he in fact said that.
8.15.2006 8:35pm
Jay:
I wonder if OMW is not thinking of Justice McReynolds, who supposedly rarely wrote dissents because he thought they were a waste of time.
8.15.2006 10:59pm
M Dowd (mail):
DISSENTBY: STEVENS; SOUTER; GINSBURG; BREYER

in Wood v. Bartholomew, 516 U.S. 1 (1995) (per curiam) - summary disposition case
8.16.2006 12:36am
Lev:
What I would rather know is why these superannuated conceited prima donna narcissistic lawyers...that's kind of redundant.... feel they each have to write something, frequently something that doesn't make a damn bit of sense, on nearly every damn case.
8.16.2006 1:55am
DRJ (mail):
On Holmes' dissents and the quote "If I can't convince 4 others ...", I found the following statement regarding his dissents in his official memorial by the Massachusetts bar:

There has been much comment on his dissenting opinions. A volume of them was published a few years ago. Doubtless they have contributed somewhat to his popular reputation. It would not be fair to him to rest his title to usefulness as a judge upon the record of his dissents, in view of the great number of sound and luminous judgments in which he expressed the decisions of the court. During the two decades of his service on this court, he several times declared his theory as to dissenting opinions. In declining to join with any of his associates in an answer to questions in an order of the House of Representatives requesting an advisory opinion under chapter 3, article 2 of the Constitution, and in filing a separate answer, he expressed his views in these words: "If the questions proposed to the justices came before us as a court and I found myself unable to agree with my brethren, I should defer to their opinion without any intimation of dissent. But the understanding always has been that questions like the present are addressed to us as individuals and require an individual answer." (Opinion of the Justices, 160 Mass. 586, 593.) In Vegelahn v. Guntner, 167 Mass. 92, 104, he said: "In a case like the present, it seems to me that, whatever the true result may be, it will be of advantage to sound thinking to have the less popular view of the law stated, and therefore, although when I have been unable to bring my brethren to share my convictions my almost invariable practice is to defer to them in silence, I depart from that practice in this case." Again he stated: "When a question has been decided by the court, I think it proper, as a general rule, that a dissenting judge, however strong his convictions may be, should thereafter accept the law from the majority...." (Plaid v. Woods, 176 Mass. 492, 504.) His first dissent after becoming a member of the Supreme Court of the nation was in Northern Securities Co. v. United States, 193 U. S. 197, 400, where this occurs: "although I think it useless and undesirable, as a rule, to express dissent, I feel bound to do so in this case and to give my reasons for it."


http://www.massreports.com/memorials/298ma575.htm
(near the bottom, in the comments by Chief Justice Rugg)
8.16.2006 2:13am
OrinKerr:
Lev,

And even worse, they take so few cases! It reminds me of the old Woody Allen line -- the food is terrible, and such small portions. ;-)
8.16.2006 2:28am
Dave Hardy (mail) (www):
I'm still searching for the famous "My dissenting opinion will be brief. Bullshit!" dissent.
8.16.2006 3:14am
Richard Riley (mail):
In his later years, Justice Douglas famously refused to join any tax opinion that ruled in favor of the Internal Revenue Service. He ended up not bothering to write dissenting opinions and the four words "Mr. Justice Douglas dissents" came to appear at the end of every pro-government tax opinion. I wonder if dissents without opinion got into a bad odor because habits like this made them look like thoughtless obstructionism? I personally would put Brennan's and Marshall's one-sentence boilerplate dissents from pro-death-penalty rulings in the same category, but at least Brennan and Marshall had explained themselves in earlier cases. Douglas never explained his pox-on-the-IRS position.
8.16.2006 9:44am
Mark P. (mail):
Two Chiefs, John Marshall and Charles Evans Hughes, were particularly outspoken in their disdain for dissents. They went to great lenths to try to "force" unanimity on the Court. Our current prevalence of dissenting opinions really began with the elevation of Harlan Fiske Stone to Chief in 1941. He had chafed under Hughes' imperious nature, and he changed the culture within the Court regarding dissents. (Even the elder Harlan, Holmes, and Brandeis, who authored the most famous dissenting opinions, dissented only rarely.)

The interesting question about dissents is whether they undermine the institutional force of the Court. After all, if reasonable minds can disagree about a legal matter -- particularly a constitutional matter -- why does the mere opinion of an unrepresentative, unelected, extremely small group of five or six individuals merit adherence by other constitutional officers, the States, or even the People of the United States? Marshall and Hughes greatly feared that dissenting opinions would undermine the Court's authority; the recent ballyhoo over Chief Justice Roberts' desire for unanimity on the Court indicates that he may share their concerns.

Markp
8.16.2006 11:43am
Mark P. (mail):
Two Chiefs, John Marshall and Charles Evans Hughes, were particularly outspoken in their disdain for dissents. They went to great lenths to try to "force" unanimity on the Court. Our current prevalence of dissenting opinions really began with the elevation of Harlan Fiske Stone to Chief in 1941. He had chafed under Hughes' imperious nature, and he changed the culture within the Court regarding dissents. (Even the elder Harlan, Holmes, and Brandeis, who authored the most famous dissenting opinions, dissented only rarely.)

The interesting question about dissents is whether they undermine the institutional force of the Court. After all, if reasonable minds can disagree about a legal matter -- particularly a constitutional matter -- why does the mere opinion of an unrepresentative, unelected, extremely small group of five or six individuals merit adherence by other constitutional officers, the States, or even the People of the United States? Marshall and Hughes greatly feared that dissenting opinions would undermine the Court's authority; the recent ballyhoo over Chief Justice Roberts' desire for unanimity on the Court indicates that he may share their concerns.

Markp
8.16.2006 11:43am
Anderson (mail) (www):
The only thing worse than "dissents without separate written opinion" is "concurs in part and dissents in part without separate written opinion," a particular favorite on the Mississippi Supreme Court.

Nothing like a 5-4 op where one of the justices takes *that* position.
8.16.2006 3:11pm
Gorjus (mail) (www):
Hilarious. Lev, I do think there's a very good reason to write dissents--in many cases, they are the law of the future. Highly notable is Justice Stevens' dissent in Bowers v. Hardwick as a direct predictor of Lawrence v. Texas. It just takes a while.

Other dissents are important for keeping "the TRUTH!" alive, such as the one at the Fifth Circuit today on religious displays.
8.16.2006 4:49pm
John Beukema (mail):
I wonder if what Dave Hardy has in mind isn't one of my favorite old "New Yorker" cartoons, in which a member of a multijudge panel says, "My dissenting opinion will be brief. You're all full of crap." Sorry I can't tell you who the cartoonist was or when it appeared.
8.16.2006 6:18pm
elChato (mail):
OrinKerr,

be careful what you wish for when you say the court should take more cases!

as for dissents without reasons, it sure would be nice to have even a sentence or two to know what they were thinking. But perhaps they believe this only heightens their mystique . . .
8.16.2006 8:51pm
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8.17.2006 12:06am
Lev:
And I was not talking just about dissents, I was also talking about the damned incomprehensible "aren't I such a smart lawyer who thinks I am God enlightening the world" concurrences in whole in part in result or not or maybe, unless they sort of concur in their dissension or dissent in their concurrence.

They are not on the Supreme Court because of their Godlike intelligence and knowledge and experience and morals, they are on the court because they were nominated by a politician and confirmed by other politicians.

The only reason to want this lot to take more cases, would be the futile hope the superannuated wrecks would break down under the workload and take a long overdue retirement. Futile, because all they would do is hire more law clerks to write the crap for them.
8.17.2006 12:52am
James of England:
Lev, it is true that they are not chosen by some glorious objective source for their intelligence, but it seems overly cynical to believe that those who appoint them are not generally motivated, at least in part, by the desire to appoint judges who will perform well.

The desire to have the SCOTUS decide more cases is rational even if you don't believe the SCOTUS is made up of clever and honest people (as, admittedly, I do). You simply have to believe that they are cleverer or more honest than the courts below them, or that circuit splits are too common. There are also arguments against, but I'm not sure I see how the Justice's mere humanity is one fo them.
8.17.2006 6:21pm