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Dissent and the Federal Judicial System

During the era of court Marshall, few dissenting or concurring opinions were written

regarding a case. Actually, the hallmarks that time was the degree to which court members

agreed on the results of cases. As a result of a lack of dissensus during this time and in most

history of the Marshall courts, it is evident that the decision of justices was based on factors

linked to the legal model such as intent or precedent. The majority of judicial specialists offered

a resounding yes until 1941 when rates of dissent rapidly increased, and traditional legal policies

offered satisfactory clarifications for a supreme court whose institutional activities resulted in

consensus decisions. Under the precedent doctrine, judges are supposed to follow cases that were

formerly decided, irrespective of whether they agree with then or if the cases were wrongly

decided. Cases can establish legal propositions that are difficult to understand or with several

interpretations. However, these propositions can be found within the opinion of the majority.

What about popularity decisions or cases that are decided without majority opinion support? This

kind of decision is usually treated as precedential by federal courts. The supreme court of the

United States has highlighted the issue of precedential impact on plurality decisions, however, it

has not managed to express definitive and clear solutions. Therefore, dissenting can be explained

as an opinion that fully disagrees with the court’s ruling, even though that opinion concurs with

theories and principles that agreed in opinions that result from the other way of ruling.

The existence of dissent in judicial work is a phenomenon that irregularly applies direct

consideration. For instance, in the case of Hughes v. United States, the court granted certiorari
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which induced the explanation of a plurality precedent. Hughes put into consideration the rights

of formerly sentenced defendants who had already accepted plea bargains. According to his

argument, the defendant was eligible for a reduction of the sentence following a reduction of the

recommended sentencing range for his crime after he was convicted by the Sentencing

Commission. The court issued a plurality decision in the precedential case Freeman v. United

States, where four judges joined the leading opinion, four joined in dissent and one concurred in

result only (Hartman, et al, 17).

Dissenting applies in other countries as well. For example in Germany, it has always been

a law that voting in courts that comprises more than one judge be conducted in a secretive

manner. However, disclosure of the casted votes leads to a tort, whereby in the case of a

professional judge it would lead to a grave disciplinary offense. The administration has no

authority to allow exemption from this rule, but a justice who dissents from his colleges can state

his opinion to the court through a secret file. The German Supreme Court further allows that the

number of votes cast for or against a decision can be revealed. But disclosure of the opinion of

individual opinion has always been regarded as illegal.

German republic is made up of several landers, where each has its own constitution. Each of

these landers has its own constitutional court in accordance with the propensity of the

perfectionism of law. The federal republic of Germany naturally has its federal supreme court.

The Supreme Court has ruled that both the Communist Party and the Socialist Reich party are

unconstitutional. However, it has not been officially announced by the federal constitutional

court that members in the parliament who belong to these parties should not be permitted to sit,

but in the discussion of the two decisions, it was affirmed that this was the automatic
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consequence of the judgments (Kelemen, 1345). Australia is yet another country where dissent

doctrine applies.

Dissent has several benefits as well as harm to the federal government of the United

States. To begin with, dissent provides three important benefits to the judicial system. First,

dissent allows members of the judiciary to have an individual expression of their opinions.

Second, dissent positively impacts the way in which majority opinions are drafted in order to

make what they address more comprehensive and what is laid down more precise. The third

benefit is that, hearing an opposing opinion can offer clarification of the position for the majority

to those who could be trying to understand what the opinion means. The judiciary system gains

institutional independence from dissent and cossets it from executive and legislature demands. In

short, dissent allows judges to fulfill their function without the pressure of submitting themselves

to a process that is structured to provide unanimity. Dissent enhances judicial independence from

their colleagues (Huq, 1).

On the other hand, dissent can result in weak compromise judgment due to the need for

reflecting on the consensus lowest common factor. The second detriment is that in case the

judgment is not uninteresting settlement between different opinions, then it is more likely to be

the result of the work of one judge instead of the entire team of justices. This was the greatest

fear of President Jefferson for the practice which Marshall chief justice tried to apply in the

supreme court of the United States. Both benefits and denials of dissent freely seem valid. It is

not inconceivable at all that unanimity may be difficult to attain in real sense. Without

consensus, the first case surely must be the only way through which a unanimous point of view

can emerge. However, when the court is spared the potential of immediately losing public

confidence as a result of a non-united bench, ironically it is weakened in its potential of

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decisively stating and developing jurisdiction law. As time goes, the public’s trust in the court is

likely to decline due to a lack of openness to how decisions are arrived at (Leonard, Meghan, &

Joseph, 17).

However, some improvements can be made on dissents. An improvement that I can

suggest is dissenting should radiate substantial impact in the coming decisions of the courts as

well as legislative action. In a later case, the majority can adopt the dissenting opinion in making

a ruling. A good example is the Gatlin v. United States, whereby the dissenting point of views in

former cases became the law when the court ruled that the proper disposal in a criminal

conviction reversed as a result of the total lack of evidence of an important element of the felony

was to confer a new trial, instead of discharging the accused. More regularly, maybe the subject

legislation is the legal point that repudiates the rule of the majority. For instance, this occurred

the Schneider v. Schneider rule of the majority following the adoption of the code of civil

procedure by the legislature, which does not allow alimony judgments to have suspensive

appeals. The expectation of dissent in future cases, as well as legislation, can confirm that dissent

serves as an appeal to tomorrow’s intellect. Maybe, the federal courts should work on reforming

their practices so that justices who disagree with the judgment of the court but concur with some

reasoning from points of view agreeing with the ruling would formally agree in that reasoning

(Larsen, 373).

In conclusion, from the fact that dissent should demonstrate reason rather than emotion,

is sound. A dissent should criticize the majority opinion and when applied together with judicial

restraint, it becomes a duty, for which the justice should not give an apology. Dissent can help

the court or the federal judicial system in every one his due. If dissent is really truthful, then it

will be judged accordingly by the intellect of the future.

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Works Cited.

Hartman, Gary R., Roy M. Mersky, and Cindy L. Tate. Landmark Supreme Court cases: the

most

influential decisions of the Supreme Court of the United States. Infobase Publishing,

(2014); 17.

Huq, Aziz Z. "Judicial Independence and the Rationing of Constitutional Remedies." Duke LJ 65

(2015): 1.

Kelemen, Katalin. "Dissenting opinions in constitutional courts." German Law Journal 14.8

(2013): 1345-1371.

Larsen, Allison Orr. "Supreme Court Norms of Impersonality." (2018): 373.

Leonard, Meghan E., and Joseph V. Ross. "Consensus and cooperation on state supreme courts."

State Politics & Policy Quarterly 14.1 (2014): 3-28.