- Well good evening, and welcome.
I'm Trevor Morrison, I'm
the Dean of the law school,
and I am delighted to welcome you all here
for this year's James Madison Lecture.
The Madison Lecture is a hallmark event
at the law school,
one of our longest running lecture series,
and our most prominent public lecture.
The lecture series began in 1960,
and with the inaugural Madison Lecture
presented by Supreme
Court Justice Hugo Black,
and in that lecture, he
famously illustrated his theory
of the absolute protection of free speech.
So the lecture has a long history
of distinguished jurists
coming here to NYU law,
and given their views on
the most pressing matters
of our time in law and policy,
especially constitutional law,
but other areas of law as well.
The lectures are designed
to enhance the appreciation
of civil liberty and the strengths,
and strengthen our sense
of national purpose.
This series provides a
forum for our community
to hear our nation's leading jurists
present their vision of the law
and its role in our society.
The Madison Lecture is
a wonderful tradition
here at the law school, in part,
because it is an opportunity
for us to welcome members of the judiciary
here to NYU law as we have done every year
since 1960, and tonight,
we welcome the Honorable Bernice Donald,
Circuit Judge of the United
States Court of Appeals
for the Sixth Circuit.
Judge Donald, we are so grateful to you
for joining us here this evening,
and we look forward to
hearing your lecture,
whose title is Judicial
Independence, Collegiality,
and Dissent in Multi-Member Courts.
Nothing interesting there.
(audience laughing)
Judge Donald will be formally
introduced in a few minutes,
but let me just say, Judge,
how thrilled I am and honored
that you've come to spend
this evening with us,
and we look forward to hearing from you.
Our colleague, Professor Stephen Gillers,
will introduce Judge
Donald in just a moment,
but I wanna pause here and say,
that the Madison Lecture
would not have been possible
in its inception,
or certainly in its flourishing
across the many decades,
without the vision and commitment
of our late colleague, Norman Dorsen,
who passed away last
year, in July of 2017.
Norman was, to put it mildly,
a titan in the law,
and in this law school.
A dedicated educator and
friend of the law school,
a visionary for NYU, and
faculty member Director
of the James Madison
Lecture Series for 40 years.
He was tremendously influential
through this lecture series
among many other things.
His longtime leadership of this lecture
is just one of the many ways
that he contributed to
the intellectual life
of the law school, and in many ways,
defined the intellectual
life of the law school.
Norman's lifelong dedication
to civil liberties
has had a profound influence
on this law school,
on this university, and on American law.
And we remember him tonight.
We miss him, we remember
him, we celebrate him,
and in doing all those things,
we continue the Madison Lecture,
which we are thrilled to do.
So without further ado,
I will turn things over to our colleague,
Professor Steve Gillers,
who will introduce Judge Donald.
(audience applauding)
- Thank you, Trevor.
Judge Donald,
in addition to,
(metal clanging)
in addition to her judicial career,
we learned at lunch today,
started life as a lawyer
in legal services,
and criminal defense.
And before she went on the federal bench,
Bankruptcy District Court,
and the last seven
years, the Circuit Court,
she was a state court judge in Tennessee.
Remarkable career so far.
She is the third Sixth Circuit Judge
who has been a Madison Lecturer.
The first was Martha Craig Daughtrey,
and then Karen Nelson Moore,
and now, Judge Donald.
We'll have to get more
Sixth Circuit people here,
I think, Judge Donald.
(audience laughing)
- Especially some men.
(audience laughing)
- The subject of her talk
is judicial independence,
but in a way that I had
not yet thought about it.
I think about it a lot,
but not in this way,
and maybe it takes a sitting
judge on a collegial court
to think about these things.
Judicial independence is, of course,
assured, or intended to be assured,
by separation of powers,
and by statutes that
govern need for recusal
because of external forces
that might compromise the reality,
or the appearance of a
judge's impartiality.
Judge Donald calls those structural,
but she also introduces some idea
that I had not thought about,
and that is behavioral.
The influence, and I'm quoting,
the influence brought to
bear on individual judges
by the internal, not
external, but internal,
institutional context.
And she poses this question,
which she will partly
answer, I think, in her talk.
Is it possible that the
internal institutional context
of multi-member courts is in part,
inimical to judicial
independence, that is,
that it has effects
deleterious to the fair
and impartial administration of justice,
and if so, what, if anything,
might be done about it?
So to answer those
questions, I give to you,
Judge Donald.
(audience applauding)
- Good evening.
Dean Morrison, the faculty of NYU,
I wanna thank you for the opportunity
to come and be the 2018
Madison Lecturer here at NYU.
Professor Gillers, thank you so much.
What a pleasure it is to be introduced
by a person of your stature and magnitude.
To the judges who are here this evening,
I know that Professor Ray Lohier,
pronounced by me as Ray Lahoy (laughing),
but anyway, I know the correct name.
(audience members laughing)
Judge Bob Katzmann,
Judge Pierre Leval,
Judge Elizabeth Stong
from the Bankruptcy Court,
Judge Judith Freedman, there
may be other judges here.
I am delighted to be here.
I tell you that I do not
speak for all judges,
but you know, I had
the occasion last year,
of going back through a master's program
at a different school,
and exploring some things
that I had not really thought about
in the day-to-day press of work.
And I know the tremendous
faculty here at NYU
has written on these things and more,
and I wanna say at the outset
that many of my remarks this evening
are rooted in some of the
literature of the academy
on studies about judicial dissent
and judicial independence,
and so I have to give attribution.
Because we only have limited time,
I'm not going to, throughout the talk,
give you citations for much of what I say,
but there is a corresponding
written document,
which has all of the citations,
and you may refer to that.
I have been really fortunate,
throughout my judicial career,
to have wonderful legal assistants
through the person of law clerks.
Some of them have been from NYU,
and they have all been excellent,
so I thank you, the faculty,
for sending me great help.
Others have been from other schools,
but they've been phenomenal,
and some of them are here tonight.
And I want to ask my law clerks,
as I call the names of
those I've greeted already,
and ask you to stand.
My first NYU law clerk
is here, Craig Johnson.
Craig, would you stand please.
(audience applauding)
Diane Lucas is here.
She went to undergrad at NYU,
and went to law school at Harvard.
(audience applauding)
Agatha Cole is here, and Agatha graduated
from the Cardozo School.
(audience applauding)
Are there any other of
my former law clerks
in the audience tonight?
Okay, there are many, oh, oh!
Oh my gosh!
- [Nicole] Nicole Triplett. (laughing)
- Nicole, pardon me, I have glasses here,
but I don't have them on.
(audience laughing)
I'm sorry!
- I miss you!
- Nicole Triplett.
Thank you very much, she's,
(audience applauding)
here doing wonderful.
Ah!
- Good evening, Sharrelle Mints.
- Oh wow!
- From Memphis Law.
- Thank you, thank you so much, okay!
(audience applauding)
So as I said, I had
wonderful, wonderful help.
And all of our law clerks
were supposed to be up near the front
so that I could see them,
(audience laughing)
and I wouldn't have to
embarrass myself!
But it's fantastic,
and I hope to have future law
clerks from this great school.
So I wanna talk about dissent tonight.
You know, we turn on the
TV or open the paper,
and everyone talks about division.
And when we think about the court,
we think about the court as an institution
populated by judges of different views,
but the set has been variously praised
as, in the words of
Justice William O. Douglas,
"The only thing that makes life tolerable
"for a judge on an appellate court."
It has been derided by
some as being ankle-biting,
it has been characterized as spun,
by Justice Robert Jackson,
as liberating, by Judge Patricia Wald.
Dissent has been revered
as recording prophecy
and shaping history.
Justice Felix Frankfurter,
while conversely
being faulted,
as viewed rather, dissent as being faulted
for being a bother,
he opined that it often
frayed collegiality,
and observed that it usually
had no effect on the law.
Judge Richard Posner
was of a similar view.
Judge Learned Hand went on
to condemn dissent as disastrous.
A disastrous signal of a court's disunity.
And many of you who have
read the New York Times
in the past, times past,
will know that our
court, the Sixth Circuit,
was referred to, President Revez,
as the most dysfunctional
court in the nation.
Now, that was before I came on the court.
(audience laughing)
We are now a well-functioning
collegial court,
(audience laughing)
and I'd like to think
I had something to do with that.
But this fascinating historic
and inspiring phenomenon
is a unique characteristic
of the judicial profession,
and in particularly,
of multi-member courts
that are, in fact, appellate courts.
This evening, I wanna
discuss multi-member courts,
how and should judges
approach the decision
whether or not to dissent
from the majority opinion.
Now, this often complex decision
has implications for the individual judge,
for judges on the court as a whole,
for the court as an institution,
and for the judiciary at large.
It also has an effect on public confidence
in the courts by the overall society.
It can impact judicial independence,
in perhaps unexpected ways.
First, I wanna just visit a moment
about the overview of
the issue of dissent.
Judicial independence has an
often overlooked component
that is internal to the court.
It is far more common for
observers to approach the topic
as institutional, that
is, branch independence.
We know that the judiciary is independent
of the executive and
the legislative branch.
Sometimes we look at it as individual
or decisional independence,
that independence that is
arrogated to the individual judge,
the concern being that the
judge will not be influenced
by pressures external to the court.
In a writing by Professor Charles Jay,
he introduced the concept
of branch independence,
viewed through the
separation of powers lens.
And he wrote that that is a matter
of a judiciary's attributions
against those other coequal branches,
compared to this decisional independence
that is marked by a judge's decision
whether or not to exercise
the judge's authority
to dissent in a proper case.
Much of his work, though, indicated
that even in decisional independence,
it is often not free
from external threats or inducements.
But more importantly,
those are not the types of inducements
that one would normally think about,
improper or illegal means.
Those are facets of judicial independence
that come together and are
thought of as structural,
as contrasted to this notion
of behavioral independence,
as looking at the judge in the cultural
and judicial environment of the court.
It looks at the actual
conduct of individual judges.
The concern about the behavioral approach,
is the extent to which
judges exercise legal
reasoning and judgment,
independent of these
illegitimate constraints.
It'd really speak to whether or not judges
on multi-member courts,
will more likely than not,
go along, to get along.
That's the phrase that
we're talking about.
So I wanted to focus exclusively tonight,
on the behavioral side.
The exercise of judicial authority
by individual judges in these environments
that are often made up by
people with differing views,
sometimes about the law,
looking at it through
their individual lenses,
and interpreting that law.
Unlike the external
focus of most scholarship
on judicial independence,
I want to examine the influence
brought to bear on individual judges
by internal institutional functions.
So while federal appellate judges
serve on multi-member courts,
they typically hear cases
on appeal in three-judge panels.
And frequently, they will
sit as an en banc court
where all of the judges on that court
will hear the appeal.
But that is not the norm.
Judicial independence,
seen as an absolute value,
which is a phrase that
Professor Jay uses in his work,
he talks about the term
unqualified judicial independence,
is really rare.
It does not resemble the
work that we do day to day.
And why do I say that?
Because none of us are free
to make those decisions,
free from things like the Constitution,
statutes, precedent, rules, the record.
We can't just reach out
and grab things that are beyond the case,
beyond precedent, beyond the rules,
to decide these cases.
So the fundamental concept,
the fundamental ordering
principle of stare decisis,
and more specifically,
the controlling authority
of the Circuit and the Supreme Court,
provide a powerful
constraint on this notion
of judicial independence.
Judges are bound by that,
and operate within that construct,
to do the work of the court.
Another constraint that
forms the most important
structuring framework, is
the standard of review.
Now, Judge Patricia Wald states that,
"More often than not, it
is the standard of review
"that determines the outcome
in a particular case."
I am not certain that I
hold that notion.
I know that it is critically important,
and whether you're
looking at whether or not
something is an abuse of discretion,
or whether or not it's clear error,
can certainly have a profound
impact on that decision.
But I, it's the more
often than not phrase,
that I probably would quibble with.
Rules are not of a sole boundaries
around the exercise of
a judge's authority.
Some of the other
constraints affecting judges
on a multi-member court,
are the judges' relationships
with colleagues.
And that is a real critical point.
In fact, when our court was described,
as I mentioned before, by the Times,
it was the relationship
with colleagues on the court
that brought about that
description of dysfunction.
These reflections of concern
with internal constraints
springing from the institutional framework
in which judges operate,
and we have to look at,
what considerations
constrain a judge on a court
who might differ from the majority,
and considering whether or not
to write a dissenting opinion.
And sometimes, this can
be a difficult decision.
The very existence of this dilemma
is historically bounded.
At our national beginnings,
the English Common law tradition
was a tradition of seriatim opinions,
with each judge writing separately.
That prevailed until the
ascension of John Marshall
as Chief Justice in 1801,
and he brought about a major change,
introducing this concept of a
single opinion of the court.
Marshall believed that the
issuance of a single opinion
of the court would best
enhance the court's authority,
and promote confidence and integrity
in the work of the court.
Dissents did not become commonplace
for at least another century.
It was well into the 20th Century.
Nine of 10 Supreme Court decisions
still took the form of a
single opinion of the court.
I don't think that we can say that today.
(audience laughing)
So even when a dissenting vote was cast,
it was for a long time,
very common for the Supreme Court Justice
to simply note a dissent,
other words, I dissent,
with no explanatory
opinion supporting that.
In 1925, after the passage
of the Judiciary Act,
which gave the Supreme Court
more control over its docket,
and it was intended to reduce
the workload of the court.
That gave rise to the
specialized constitutional court
that we enjoy today.
Professor Melvin Urofsky
has done a good bit of work
on this notion of dissent,
and when and how it arises.
He observed that given that the,
that only the hardest cases
reach the Supreme Court,
it is no wonder that
there are many cases today
that are non-unanimous
with different judges
coming out, writing dissents.
The same would appear to hold true
for the significant number of cases
coming to the appellate court,
because in truth,
the appellate courts are, in large part,
gonna issue the final decision in a case,
because the Supreme Court will only issue
about 70 to 80 opinions a year.
So this notion of the hard cases
coming to the court, and
the issuance of dissents,
I think, reflects that phenomenon.
I think also, increased diversity.
Not just racial or gender diversity,
but diversity of other means
provides a basis for some
of what we see there today.
So I wanna look at the decision to dissent
on an institutional level.
So dissent, except for
on the Supreme Court,
is generally an individual act.
When you're hearing a case
as a three-judge panel,
there have to be at least two of you
to agree to get the majority,
so it's an individual act.
But on the three-judge panels,
dissent has to then be individual.
So before exploring the
individual judge's decision
to dissent or not to dissent,
I wanna look at some of the,
what has been described
as the institutional cost
implicated by the entry
of a dissenting opinion.
Cost that militate in
favor of carefully weighing
the advisability of writing separately.
Now, when I talk about
these, you may say, well,
that's just common sense.
That's not an institutional cost.
It's just the way things are.
But the academy has
looked at two phenomenon
that they describe as cost of dissents.
The first is public credibility,
or the prestige of a particular court,
presumably, a judge who
is writing dissents,
may, that person's credibility,
and the credibility of the court,
may be impaired by the
writing of a dissent.
And the other is, a cost factor
from a workload perspective.
The professors note that dissents
are generally 20% longer
than an opinion with no dissent.
Now, at the Supreme Court,
it can sometimes be a lot more than 20%.
Think about the Carpenter case
that arose out of the Sixth Circuit
and went to the Supreme Court.
This is the cell-site data location case.
Chief Justice Robert
issued the majority opinion
of the court, and that majority
opinion was 23 pages long.
Justice Thomas then issued a dissent
that was 21 pages long.
Justice Kennedy issued a
dissent that was 23 pages long,
and Justice Alito issued a
dissent that was 25 pages.
Justice Gorsuch rounded that
out with a 21 pages dissent.
So you had a majority that was 23 pages,
and when you got in all the dissents,
you ended up with a decision
that was close to 100 pages, if not more.
It was more than 100 pages in length,
I think 119 pages.
So it does increase the workload,
but it increases the
workload of the lawyers,
who, when they are looking at these cases,
generally are gonna read the majority
and the dissent, even though ostensibly,
the dissent adds nothing
to the body of law,
except when it does.
(audience laughing)
Turning first to the
notion of credibility.
The view is that,
you know, the person
who writes the dissent
is going against the reasoned
opinion of the majority.
And all of these people ostensibly
are of equal esteem and prominence.
But there's some judge who disagrees,
and is writing separately,
and that might display a
weakness, or lack of certainty,
with respect to the authority's opinion.
Judge Learned Hand warned that
dissent could be disastrous,
because disunity cancels the
impact of monolithic solidarity
on which the authority
of a bench of judges
so largely depends.
In that same vein, Professor
Alan Barth once wrote,
of the effects of the
Supreme Court dissents,
and he said that, "A dissenting opinion
"casts a certain shadow
on the majority opinion.
"The authoritative view of the issue
"that the court is considered.
"A dissent makes it plain
that one or more jurist,
"as imminent as those who
constitute the majority,
"thinks that the majority got it wrong."
Sometimes, that may be troubling,
but sometimes judges, I
think, don't see that.
Justice Marshall said, you gotta do
what you think is right,
and sometimes, go your own way.
Dissents can be seen as a confident
show of strength by the court,
and that's the view held by
Justice Ruth Bader Ginsburg.
The majority may play a part
in whether a dissent occurs.
In the words of Supreme Court
historian, Percival Jackson,
he said, "The judge who
writes for the court
"must not roam the fields.
"On the contrary, the
judge must weigh his words
"within the ambit of discretion,
"so that he may secure
agreement from his fellows."
And he has to avoid
confusion and uncertainty
in order to obtain unanimity,
but also to command respect.
"Put somewhat differently,
"the strength of the
collegiality on a court
"may inspire the majority to
take minority reservations
"or objections into account,"
and this may mute certain of the arguments
in order to avoid a dissent.
And in that instance,
it goes back to whether or not the judges
who are making up that majority
are really holding fast to their view
of the issues in that case.
The need for certainty,
for courts to decide cases
in such a way that the law is clear,
and persons may adjust their behavior
according to predictable rules,
is one of the factors
weighing against dissent.
Now Justice Brandeis noted,
"Stare decisis is usually the wise policy,
"because in most matters,
"it is more important that
the applicable rule of law
"be settled, than that
it be settled right."
Now, before you gasp,
(audience laughing)
I am certain
that Justice Brandeis was not saying
that it was better to get the case decided
even if it's decided incorrectly.
I think he was speaking
to those close cases,
and that in those close questions,
that some resolution is
better than no resolution,
and judges should work together
and examine, and reexamine issues,
to see if they can't reach a conclusion,
like we tell juries,
to reason, even though you may
have a strongly held belief,
listen to what the other
sides see, and test that,
and see if you can't
come to some agreement.
And I think judges do that same thing.
Now, ironically, Justice Brandeis's praise
of the value of judicial certainty
came in the form of a dissent.
(audience laughing)
So the rule of stare decisis, though,
tending to consistency, he said,
and uniformly, a decision
is not inflexible.
Whether it should be
followed or departed from
is a question entirely, he said,
within the discretion of the court.
I said the second cost, the
dissents lead to extra work.
Well, when one chooses to write a dissent,
that is self-assigned extra work.
And I think most judges,
who have strongly held
beliefs, and a view of the law,
do not feel burdened by that at all,
the extra cost of time.
It's just part of the job.
Dissents do not solely
impose cost, though.
They also bring benefits.
A common rationale for
dissenting is to flag an error
in order to show the
attention of the court,
pardon me, is to draw
attention to the court above.
And these dissents can signal
shifts in jurists' prudence,
that may fall to a future
generation to resolve.
But they often serve the function
of safeguarding a minority's dignity
and capacity, to register
deeply-held views in the record.
Think about cases like Dred Scott.
Cases like Justice Harlan's dissent
in Plessy versus Ferguson,
or Justice Jackson's dissent
in Korematsu versus United States.
These dissents add nobility
to both legal and national history,
salvaging by their note
of moral and legal clarity,
hope for, and confidence in the future.
Last year, I believe, or it
could have been this year,
I went to the investiture
of a new judge in our court,
a judge by the name of John Bush.
And he had two, well,
he had a number of
dignitaries in the audience,
but two of which were in
the United States Senate,
Senate Majority Leader Mitch McConnell,
and Judge Rand Paul.
This judge was from Kentucky.
And I won't bore you with
Senator McConnell's comments
at the investiture,
but Rand Paul made some comments
that I thought were actually, for me,
surprising, and they resonated,
because he talked about the
power and the importance
in the preservation of dissent.
He mentioned that sometimes,
in the cases of dissent,
they mark the writer's view of history
and where things ought to be,
and sometimes, it takes
society a while to catch up.
And he specifically talked about
Korematsu, and about Plessy,
and I thought, given
that he's a non-lawyer,
that I was really, pleasantly surprised,
and moved by those statements.
Some people talking about dissent
use some surprising comments,
and if I could sing, I would
sing a bit of this to you.
Judge Diane Wood, of the Seventh Circuit,
uses some of the lyrics
of Kenny Rogers' song,
"You gotta know when to hold
'em and when to fold 'em."
(audience laughing)
She talks about a judge having to know
when to dissent, that is to hold 'em,
and know when to go along with
the majority, or to fold 'em.
But she says, sometimes
there's a third option.
Sometimes, you have to reshuffle.
And in her instance,
she believes that these are things
that judges really need to consider,
the value of doing that writing,
and what it does to the person,
what it does to the court,
and how important it is
for you to exercise one
of those several choices.
Judge Patricia Wald from the D.C. Circuit,
cautions against separate concurrences.
Now, we think concurrences
are sort of agreements
with the result reached by the majority,
but she says that
someone who is constantly
writing concurrences could raise eyebrows
for writing separately on matters,
whether judge thinks the
majority got the result right,
but they may be thought of
being somewhat self-righteous,
or even single-minded,
in requiring that the public see it
in this individual judge's way.
She said that judges must be careful
about that departure from
the opinion of the court,
and drawing attention to the end of the,
the attention, rather,
to the individual judge.
I mentioned to you earlier
about Thurgood Marshall's view,
and I think all judges,
whether they're on a multi-member court,
or on a single court,
view the law through a particular lens.
And I wanna be clear, I don't mean
that the judge injects their
personal view of the law.
I think judges look at the law,
they come to it with a
view to applying that,
but it's not in a vacuum.
All of us view it through
a lens that is filtered
by life's experiences, and
a range of other things.
So dissent likewise, is
fueled by perspective,
and viewed through life lens.
So, you know, we can talk
about what if the currency
that the judge has at stake,
if you're using Judge Wood's metaphor,
well, it's the judge's persuasive standing
with her colleagues.
Not only on that particular panel,
but the colleagues on the court,
does one by writing
separately too frequently,
risk her credibility, or risk being taken
as one who lacks the heft
to influence colleagues.
Does one run the risk of being branded,
such that it lessens the effectiveness
of a judge on the court.
And how should one weigh that?
Justice Harlan Stone, in
a letter, confided that,
"If I should write in every case
"where I do not agree with
some of the views expressed
"and the opinions, you
and all my other friends
"would stop reading my separate opinions."
So he said that the decision
to dissent must be measured.
These, and other considerations,
lead to what Judge Posner
calls dissent aversion.
And if you think about that,
it's characterized to the
boy who cried wolf too often,
or perhaps the dog that barks incessantly,
such that when there really
is an armed intruder,
no one pays any attention.
The judge who's frequently dissenting
when there's an issue,
that they really need to dissent,
is this just one more dissent
flowing from that judge?
It has been said that one needs
to pick the ditch in
which they wish to die,
and most of those dissents don't come down
quite that harshly.
So, I think we need to avoid assuming
that too much is at stake
in the judge's decision.
Framing the questions in certain ways
presuppose that the judge's viewpoint
is in the minority.
But where one of two judges,
or one of several judges
on the court's viewpoint,
is in the minority,
it is imperative that at
least one of those judges
is able to get at least one other vote,
or else we have no decision in that case,
and the parties come to the court
with an expectation reasonable, I believe,
that they will get an answer
to whatever the complex question is,
that is brought to the court.
Most judges take their work seriously.
They take their writing seriously,
and they take writing
separately very seriously.
I mention before that
one has to be careful
about the voice that sounds
repeatedly in dissent.
There's a troubling question that arises
as to whether the sort
of pragmatic calculus
that we're talking about here
involving considerations of collegiality
and the currency of individual
judicial credibility,
constitutes a double-edged sword.
The multi-member court
is a social environment
where judges are not
exempt from the pressure
to conform with other human beings,
other judges in the court,
though certain characteristics
of the judge's professional status
may reduce that likelihood somewhat.
I talked to students a
little bit this afternoon,
and I was telling them about
the makeup of our court.
We are a 16 member court.
President Trump has confirmed
six judges to that court
in the two years he's been on the bench,
and obviously, that has
changed the court somewhat.
And the students wanted to know,
how do you operate in an
environment like that?
Does it lead to more frequent dissents?
I know that Jim Silkenat,
former President of the American
Bar Association is here.
I had the experience, when
I had been on the court
for about four years,
of going to a reception,
and at that reception, I was introduced,
not by Jim, but by
someone, to a young lawyer.
And once I was introduced,
the young lawyer said to me,
oh, you're the dissenting judge!
(audience laughing)
And I was taken aback a little bit.
I wasn't quite sure how to view that,
whether it was a compliment,
or something else.
And I didn't view myself as
having been there long enough
to earn the label of dissenting judge.
(audience laughing)
But that's what the person said.
So you know, I think that as a judge,
and as I told the students today,
when there is an issue on which I believe
I need to write separately,
whether it's a dissent or
a separate concurrence,
I have to do that,
because I am sworn to my oath
to do justice and to view the law.
Most cases that come to our court,
most cases are not the kinds of cases
on which the issues are such
that you're gonna have separate writings,
but when there is a case
where a separate writing is warranted,
I think the judge owes it
to him or herself to write.
And that's my practice.
The logic of judicial choices
in a collegial environment
seems to lead to judges voting sometimes
against their own legal conscious.
That is, going along on
a situation, perhaps,
where they don't agree,
but it doesn't violate a personal oath.
As I said before, I don't
think most cases warrant that,
but I'm sure it does happen,
and there have been cases where, you know,
perhaps I had a somewhat different view,
but in listening to my colleagues,
and I think it is important to listen,
I've been persuaded that
perhaps the view that I had
is not so strong that
I can't join an opinion
without sacrificing personal integrity.
And I think that there is
nothing wrong with that,
but am I in that sense,
giving up a measure of independence
in order to come to a majority opinion?
Justice Charles Evans
Hughes acknowledged that
published dissents detract
from the force of the judgment,
while unanimity promotes public
confidence in the judgment.
But he cautioned that in
the Supreme Court context,
unanimity, which is merely formal,
is recorded at the expense
of strong, conflicting views,
that that is not a desirable
outcome of the court,
and it must be avoided except
in cases of last resort.
So dissent imposes cost, but
it also contributes value.
And some dissents foreshadow the law.
You know, I mentioned
Justice Frankfurter before,
but Justice Frankfurter praised
Justice Holmes's dissents
as, quote, recording
prophecy and shaping history.
Justice Cardozo also
expressed the prophetic role
of dissent, saying that,
"The voice of the majority
"may be that a force triumphant,
"content with the plaudits of the hour,
"and reckoning little of the morrow."
He said that the dissenter
speaks of the future,
with a voice pitched to a key
that will carry through the years.
He noted that the dissent
can also challenge a majority
that has come to a decision
to strengthen that reason
by having it tested by
people of different views.
It can, in fact, become stronger,
or the dissent can point out
weaknesses in that majority.
So in many cases, by the
presence of that dissent,
the majority is obligated
to offer reasons,
and consider positions that
perhaps the majority opinion
had not contemplated.
And in this case, dissent
serves the interest of justice.
Now, it is possible that the
internal institutional context
of multi-member courts is, as
Professor Gillers mentioned,
inimical to judicial independence,
that it has effects that are deleterious
to the fair and impartial
administration of justice.
And so what are we to make about that?
So I'm gonna talk a little bit about that,
and then I'll sort of move forward.
We have to also consider the possibility
that the source of calculations
that we are concerned about here
actually have a positive feature
on these multi-member adjudications.
That there is a policy interest
in enhancing public
credibility of the judiciary,
and therefore, the dissents
can have a salutary effect.
It seems clear that dissent aversion
can impose cost on law and society.
Society can look at courts
with their frequent dissents,
and believe that we
mimic a society at large.
That we are divided, that we are tribal.
And that would be an unfortunate outcome.
The burden of deciding
whether to dissent or not,
as I said, is born disproportionately
by the jurist who happens to dissent,
but that dissenter has to be mindful
of the power of that dissent.
I think that a dissenting judge
wants to make certain
that they are guarded
in the tone and vehements,
and that that dissent
stays grounded in the law,
and does not attack the person,
because that's when I think
the institution suffers.
You know, late in Justice
Thurgood Marshall's career,
as the court changed
from the war in court,
and moved, I think,
across the spectrum, to a
more conservative position,
he found himself writing
more frequently in dissent,
and some of those dissents
had an air of frustration in them.
I'll talk a little bit now
about the judicial dissent as an output,
but I'm only gonna say a
couple things about that,
and then move on.
I mentioned this Professor Urofsky's work.
He looked at dissent from
the U.S. Supreme Court,
and he said that a dissenting
opinion is not law,
and it serves no official function.
He thought that sometime,
it was particularly,
was a lot like ankle-biting,
and those are his words.
He talked a lot in that context,
about dissents written by Justice Scalia,
and I think he was concerned there
about the tone of some of those dissents,
and some of the personal things
that appeared to creep
into some of the dissents.
Other writers have said,
there's been no tip of the hat
to the prophecy, to the matter of dissents
as prophecy would honor,
or any other idealistic praises.
Dissent makes no new law,
and it can sometimes undermine
persuasive authority.
I wanna just talk about
now a couple of dissents
that I think are and were prophetic,
and you know all of these cases,
so I'm just gonna touch on them.
I mentioned before, the
dissent of Justice Curtis.
I did mention Justice McLean,
but he was one of the dissenters
in the case of Dred Scott v Sandford,
and you all know the case.
Dread Scott was taken.
He was a slave from Missouri
whose master took him north
into Wisconsin territory,
and he went into court to actually sue
for his status as a free man.
The court, at that time,
headed by Chief Justice Roger Tingey,
took a dim view to Scott's case,
saying that the court ruled
that blacks in the United
States had no right to sue.
They weren't a person,
so they could not sue.
Justice Tingey went on to
remark in that famous phrase,
that a black man in the
United States had no rights
that a white man was bound to respect.
And even though that
opinion was seven to two,
there were two dissents,
one by Justice McLean,
who said that being born under
the Constitution and laws,
there was no requirement
for naturalization.
That that person born
under the Constitution
is automatically a citizen
of the United States.
Now, his dissent did not carry the day,
but it was a wonderful
clarion nod to the future,
and to the Constitution.
Justice Curtis, another
justice, said that,
"When a strict interpretation
of the Constitution,
"according to the fixed rules
"which govern the interpretation of laws
"is abandoned, and the theoretical
opinions of individuals
"are allowed to control its meaning,
"we no longer, we have
no longer a Constitution.
"We are under the government
of individual men,
"who for the time being,
"have power to declare
what the Constitution is,
"according to their own views
"of what it ought to be."
Plessy versus Ferguson, 1896.
That case dealt with the separate
but equal facilities doctrine,
and that also was a, it was
a seven to one decision,
holding those facilities did not violate
the equal protection laws.
Justice Harlan issued
a dissent in that case,
saying that, "Our
Constitution is colorblind,
"and neither knows nor tolerates
classes among citizens."
He said, "In respect of civil rights,
"all citizens are equal before the law.
"The humblest is the peer
of the most powerful.
"The law regards man as man,
"and takes no account of his surroundings
"or of his color when his
civil rights are guaranteed
"by the supreme law of the land."
And then there was the case
of Olmstead versus United States in 1928.
This case involved the use of wiretapping
to gain evidence in bootlegging operations
during the Prohibition era.
The court, in a five-four decision,
sanctioned the wiretapping,
and Justice Brandeis
took the lead in dissent,
promoting the idea of a right of privacy,
implied by the Constitution.
He also warned that we should
not have different laws
for law enforcement that were not applied,
or accorded to the ordinary citizen.
And I won't read you his words,
because they are somewhat lengthy.
Stepping forward to 1944,
in the Korematsu Case.
As you know, shortly after
the Pearl Harbor attack,
the Roosevelt Administration
authorized Executive Order 9066,
forcing the interment of all
people of Japanese descent
on the West coast,
and Frank Korematsu
deliberately violated that law
to challenge the law.
He alleged that his fifth
amendment right to due process
had been denied,
and the court obviously upheld this order
on military necessity.
Justice Jackson, in that case,
dissented, and he said that,
"A military order,
however unconstitutional,
"is not apt to last longer
than the military emergency."
He said that, "But when a judicial opinion
"rationalizes such an order,
"to show that it conforms
to the Constitution,
"or rather rationalizes the Constitution,
"to show that the Constitution
sanctions such an order,
"the court for all times
has validated the principles
"of racial discrimination,
and criminal procedure,
"and of transplanting American citizens."
Just a couple more.
We all remember the FCC versus
Pacifica Foundation case
in 1978, George Carlin's seven words
that could never be said on television.
And the court sanctioned
the FCC's regulation
of that speech, saying that
it was not violative of the...
Pardon me, that the
government's regulation
was not violative of the first amendment.
But you know, again, the
dissent in that case,
written by Justice Brennan, he said,
"The court's balance of necessity
"fails to accord proper weight
"to the interest of listeners
who wish to hear broadcasts
"the FCC deems offensive.
"It permits majoritarian taste,
"completely to preclude
a protective message
"from entering the homes of a receptive,
"unoffended minority."
But the real words that
I love in this opinion,
he said that, "It is only
an acute ethnocentric myopia
"that enables the court
to approve the censorship
"of communications solely
because of the words
"they contain."
Powerful.
And finally, Lawrence v Texas,
where a Texas statute prohibited sodomy,
and was challenged in the Supreme Court.
The court ruled six to three,
that the Texas statute
was unconstitutional.
It was an unconstitutional intrusion
into the private life
of American citizens,
and Justice Scalia was among
the leading dissenters.
Justice Scalia said that
even though this case
does not address the right
of homosexuals to marry,
that that was the next step,
and the you needed to guard against that.
And his opinion, his dissent
was really prophetic,
because in 2015, the Supreme Court,
in Obergefell versus Hodges,
legalized gay marriage nationally.
So Scalia's dissent was compelling,
and perhaps some of the rationale
in there was persuasive.
(audience laughing)
(Bernice laughing)
So you know, these
characteristics of dissent,
I think recognize that dissents,
while they're not the majority,
they conform a number
of essential functions.
They point to the unique
qualities of judicial assent,
and suggest the importance of the stakes
when it comes to a judge's decision
whether or not to vote with
the majority or to dissent.
They impact, sometimes, collegiality.
But I think, if a court has
a healthy court environment,
then it can withstand that dissent.
So in my final couple of minutes,
I would just make a comment
about collegiality versus dissent,
sort of rethinking this binary choice.
The notion of dissent as
being opposed to collegiality,
I think, is a misstatement.
I think that you can disagree,
and still be collegial if
people have respect for
the colleagues on the bench,
and their right to hold a different view.
And I think that's what we have to get to.
People are made up on the court
of different personalities,
different ideologies, different views,
all coming together to
decide important issues
that impact society in
large and small ways.
It would be a mistake to regard a judge
who happens to be in the minority,
in deciding a case as having
some sort of absolute duty
to be silent when that judge
disagrees with the majority.
Each judge has the right to
express their view of the law,
but it should be about the law,
and not about the person.
And I think if any of us
can be hardened by anything,
I think it can be by the relationship
between Justices Ruth Bader Ginsburg,
and the former Justice Scalia,
people who could not
have been more different
in their view of the law,
but who were such friends off the bench.
And I think neither,
because of their positions,
ever lost respect for the other
because of a dissent.
So rather than thinking of
collegiality and dissent
as a binary, as mutually exclusive,
it is possible and salutary
to regard collegiality as a quality
that may be present or absent,
even in the face of dissent.
It's important for judges
to have a wonderful command
of the language, so that we
can persuasively, eloquently,
and respectfully make those dissents.
There was one dissent that's
in Professor Urofsky's work,
where the judge starts off,
"I am deeply troubled by the
majority's deplorable disregard
"for fundamental fairness."
Deeply troubled conveys intense unease,
but the alliterative phrases that follow
are exceptionally forceful.
The adjective deplorable in particular
is a real barb, and
probably upon rethinking,
probably would not have
been used advisedly.
Judges have accused other judges
of distorting a particular legal standard,
and of expressing an outlandish refusal
to treat relevant authority
as proper authority.
Sharp wording has its place sometimes,
but I think that if we
can make forceful points,
forcefully, without personalizing those,
and without demeaning
a judicial colleague.
I think that is the thing
that really points the
way to a collegial court,
where different views will be respected.
Even though you disagree,
it would be disagreement with respect.
Dissents can be expressed collegially.
And I talk to my clerks all
the time about that process.
We can disagree with outcomes,
but we don't disparage
and demean the people
who hold those different views.
And if, in fact, we are writing something
where a judge is gonna be reversed,
they are instructed never, ever
to use that judge's name,
the name of the judge
who's being reversed.
Now, if we are affirming and praising,
we can use the name of Bob Katzmann,
but if we are reversing it, we
don't put that name in there.
It's not necessary.
So, there are a lot of things
that we can do to make sure
that we create that environment
where dissent is respected
and occupies a proper place.
In personal and institutional realms,
dissent can manifestly
have cost, we know that.
But those costs are costs
that are worth paying.
The right to dissent is precious,
and the reasons are often compelling.
It may seem paradoxical,
but perhaps the deepest
value of that right
is such that to safeguard it
requires extreme prudence,
and moderation in its exercise.
So there are hard decisions
that have to be made,
and we will make them.
Those decisions will differ,
depending on the type of case.
So we might call it a
judgment upon one's judgment
in deciding whether or
not to write a dissent,
or whether to write even a concurrence.
But it is this higher judgment
exercise with the long view
to the best interests of the court
that I think judges are
really concerned about.
As judicial officers and
members of our state, local,
and federal courts,
and as members of local, state,
and national communities,
we do well when we exercise
our judgment carefully,
and responsibly, with
respect for our colleagues,
but with fidelity to the law
that we are charged with discharging.
The greater the behavioral
independence of each judge,
the more meaningful a judge's
agreement when it comes.
Acquiescence to the
majority out of obligation,
or felt pressure to
confirm, ill-serves justice.
Every judge takes an individual oath,
and we must give fidelity to that oath.
Genuine assent draws from the
wellspring of legal conscience
and freely given, is a
wholly different matter.
So the right to dissent,
reinforcing, as it does,
the value of assent,
emerges in this light as a
pillar of judicial independence.
Having said that, there
are difficult cases.
And I wanna leave you with the words
of Justice Thurgood Marshall.
It is not on the dissent
of a judicial opinion,
but it's about dissent generally.
And he says that we, as a people,
must dissent from indifference,
we must dissent from apathy,
we must dissent from fear,
hatred, and mistrust.
We must dissent because
America can do better,
and because America has no
choice but to do better.
The judiciary is an
independent, strong institution
that has played yeoman's role
in where we are today as
a society, as a country,
as a nation, and as a world,
and I hope that every
judge and every lawyer,
and every litigate of any kind,
honors their place
in the legal profession, and in upholding,
and giving sacred credence
to the rule of law.
I thank you, and I think we have minutes.
Do we have a few minutes for questions?
- Mm-hmm, yes we.
- Okay, so,
you have questions?
(audience applauding)
Yes.
Are we standing or we talking?
- Judge Donald has agreed
to answer a few questions.
And I ask that you come
up to the microphone
if you have one,
and while we wait, I'll ask the first one,
because I wanna challenge your optimism,
and I hope, (laughing)
(audience laughing)
we've seen, in the country,
incredible divisiveness
generally, hostility.
Polls say that people
would rather their child
marry within their political party
than, well, I'm getting that backwards,
but they would be more concerned
if their child married
outside the political party
than married outside their religion.
The language, the tone people are using,
the cleavage, the
divisiveness politically,
how confident can you be
that that won't percolate into the courts?
You say that more than 1/3 of your court
has been appointed in the last 20 months.
Given what's happening nationally,
what will prevent that divisiveness
from emerging among
multi-member federal courts?
- I think that the individual
judges on the court
have to work harder to
create an environment
of respect, and of trust.
I think that if you cannot
respect and trust your colleague,
it is difficult for you to
look at their different view
and respect that view.
Our court went through a rough period.
No one on that court ever
wants to go through that again.
We, on the court now,
are working actively to make certain
that we get to know each other,
not just as judges, but
as individuals, as people.
And we come from different places,
we have different views,
but when it comes to the law,
we have to respect that every judge
comes to the law with an honest endeavor
to make the best decision they can.
And you know, we try,
I think, not to believe
that any judge is coming at this
from a political perspective.
And I have to believe that,
because we have to remain free
from those external influences
from the political realm.
Even though we are appointed,
I am optimistic that our judges,
no matter the president who appoints them,
really will come to the court,
not with an R or a D
imprinted on their robes.
That they will come as a judge,
exercising independent judgment
to make the best decision they can
based on the law and the facts,
and the other proper constraints
that frame that judgment.
So I guess I'm just a natural optimist.
(audience laughing)
Yes, sir.
- [Man] I can't tell, is this on, yes.
First, thank you for a lovely talk.
That was all fascinating to listen to.
In addition to the singular dissent,
I feel like there's been a tendency
at the Supreme Court level,
to have a line of dissents.
Justice Scalia is probably a great example
with Lawrence to Windsor to Obergefell.
I was curious your thoughts
on whether a continuing objection
to the original case
might even be an issue
with stare decisis where years
after a decision was made,
that a justice is still not
really accepting it as the law.
- You know, I think you have some of that,
and it gets back to where I
think, judicial craftsmanship,
where one believes that, you know,
that is the law, but it ought not to be,
and we can start down a road
where we start to write,
if there's an opportunity, or a crack,
to write to try and etch away at that,
and ultimately, to, you
know, to a revision.
So I think that's just
something that probably happens,
and maybe that's how we
end up getting change,
but until there is a real decision
that directly, either reverses,
or alters that facet of jurisprudence,
and we're with it,
but that does not stop
judges from opining,
and writing about, perhaps,
shapes of it, or saying to some degree,
this is where the law ought to be going,
and here's how to get there,
and every time one finds
a case that gets you closer to that goal,
exploiting it.
Yes, sir.
- [Man] Thank you, Judge Donald.
Would you agree that
the one beneficial value
of a potential dissent
or a threatened dissent
might be to narrow the scope
of the decision of the majority,
and in that sense,
perform a useful function?
- Absolutely, and that's what I meant by
that sometimes, having
that threat of dissent,
or that proposed dissent,
it will cause the court
to mute certain positions
and the majority opinion
that might have been made,
or back away from something.
So that is one of the
effects that it can have
on the multi-member court.
Because judges really
don't wanna draw a dissent.
They don't want to lose the third judge.
The court wants to issue
majority opinions if it can.
And if there's something people can do
by moderating views, or by
some adding different things,
the would-be dissenter,
it can help shape that majority opinion,
so that it comes out a little more muted.
- Thank you.
- Thank you.
- Your Honor.
- Yes, sir?
- [Robert] In the state of New York,
in order to get to be court
of appeals, as of right,
you must have two dissents
in the appellate division.
And also, in terms of
seeking an application
in the federal court,
in terms of asking for en banc,
you're not going to get any place
if you have a unanimous
decision of the three judges.
Are these things to be
taken into consideration
when you decide whether or
not you're going to dissent?
- Thank you, what is your name, sir?
- [Robert] Robert A. Katz.
- Mr. Katz?
- Yes.
- Okay.
You know, I am sitting
here looking at two judges
from the Second Circuit Court of Appeals
(audience laughing)
who are here in New York,
and you know, I'm gonna
refrain from answering that,
because I, you know,
these are people who know it.
I am not foolish enough to wade into that.
I think that with our court,
on the Sixth, and I don't know
how it works in the Second,
but when there is a request for en banc,
one of the things we look at
is whether or not there
are conflicting decisions
from different panels,
'cause one panel can't overrule another,
and often in that instance,
we will take an en banc hearing
if it is on a significant issue
that presents good facts.
But we consider carefully
before we go en banc.
The parties, you know, they appeal,
and I don't think we have
as stringent of rules
as perhaps you do here in New York,
because we get lots of appeals,
but the court will decide whether or not
it will grant oral argument,
or where they will simply, you know,
decide the case on the paper,
but we, of course, aren't in the position
of the Supreme Court where
we decide which ones we get,
and which ones we don't,
but we do decide which ones that we hear,
we'll have oral argument.
I will say one other thing
in the event there's students here.
We have a tradition in our court,
and actually a rule,
that we don't hear every,
all argument on every case
where there's a request,
but if there is a law firm
that takes a case pro bono,
and they request oral argument,
we will give oral argument in that case,
because the law firm
has expended resources,
and they are doing a service
to the court taking the case,
and so we will grant oral
argument if there's a request.
The other issue is, if a law school clinic
is arguing the case, if
they've submitted the briefs,
we will automatically grant
oral argument in that case,
because we want the students to come
and have an opportunity to present,
and we find that we get great quality work
from law school clinics.
And forgive me for not answering
your question directly,
but, you know,
I'm not gonna (laughing).
(audience laughing)
Judge Katz and Judge Lohier
are gonna be around a little bit after,
so you can sorta ask them that.
(audience laughing)
- Next year, the speaker
will be Gerry Lynch,
- Ah!
- from the Second Circuit.
There is a refreshment stand back there.
Please, please partake.
Thank you.
(audience applauding)
