From Seriatim to Dissent: an Historical Overview of Opinion-Delivery Practices in the United States and Canada Supreme Courts

none1siIn several Courts of last resort, judges are permitted to publish a dissenting opinion. This practice is not an universal one, since in some constitutional Courts of continental Europe the publication of dissenting opinions is forbidden. There has been a long-standing debate within both the academy and the judiciary over which practice is superior. Many have criticized dissenting opinions as shaking the public’s faith in the Courts, compromising the certainty and clarity of the law and being an inefficient use of resources. On the contrary, others have emphasized the benefits of published dissents including their being consistent with constitutional democracy and their contribution to the evolution of law. So who is right? Is dissent a symptom of a dysfunctional Court or of a healthy one? Is dissent essential to getting the best possible legal rule or does it lead to imprecise or bad legal rules? This paper does not attempt to provide a broad normative justification for the publication of dissenting opinions, nor does it answer the all-encompassing question of whether dissent-permitting Courts should abandon the practice of publishing dissents in favour of publishing only unanimous decisions. By contrast, this paper provides a critique of the ortodoxy to advocate absolutely either for or against the publication of judicial dissent, seeking to set out a different way of looking at the value of separates opinions. My pattern will develop by the following claims. First, a uniform practice across jurisdictions and Courts may not necessarily be appropriate because Courts of last resort differ in fundamental ways. It is not surprising that we observe opinion-delivery practices of United States and Canada Supreme Courts suited to the particular times. This fact seems almost self evident, but it does confute that the current practice of writing separately is theoretically superior to other methods. The lesson from history is that allowing or forbidding dissent is not about getting better law, but about achieving some defined role for Courts (typically more power over disputes). Then my second claim is that the value of separate opinions in a specific Court necessitates a consideration of the unique context within which that Court operates. Thus we must ask which are the facilitators of judicial individual opinions, setting out a contextual analysis for undertaking an assessment of factors such as credibility, function and procedure of the Court. Third, applying the proposed analysis to United States and Canada, I conclude that there is no simple answer to the question of how Courts should decide cases or deliver opinions. Issuing dissenting opinions is not a natural condition or even the most effective, efficient, or rational system for judicial decisionmaking process. But it doesn’t clash with collegiality and the elimination of dissents would not move these Courts in the direction of a better state of discourse, because, at present, the practice of publishing inidividual opinion is a valuable component of constitutional adjudication in both of these Court, since their power resides in the main instrument they have to communicate with powers on the outside and with society.mixedE.FerioliE.Feriol