Published in Litigation, Volume 43, Number 4, Summer 2017. © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
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SUA SPONTE
A Judge Comments
we worked on a strongly worded dissent, designed to at tract
attention—not votes—and distr ibuted it within the court. The
dissent was so vituperat ive that I ended up apologizing to the
author of the majority opinion for its tone, thoug h not for its sub-
stance. Given my dissent, t he vote stood at 6–1. That meant that
the court just might not be r ight.
Another justice decided to wr ite a more moderate dissent, de-
signed to attract vote s. When it was distributed to the court , the
vote was 5–2. At the next conference, we discus sed the case and
voted again. The outcome? 7–0, but this ti me 7–0 the other way.
That meant, of course, that we were right : 7–0 always means that
the court is right, r ight? But look how variable “right” can be.
One day we voted 7–0 to reverse; soon thereaf ter, on the same
case, we voted 7–0 to aff irm. And my vigorous dissent, which
had started it a ll, never saw the light of day and never will. Now,
that was a good dissent .
It’s not that unusual for a case to “f lip.” After hearing oral
arguments, we held prelim inary votes, determined who was in
the majority, and assigned a jus tice in the majority to draft a m a-
jority opinion. Often t he vote was close. Any time an initia l vote
was 4–3, it was ripe to f lip because only one of the four justices
in the majority was needed for t he vote to come out 4–3 the other
way. Some justices on our court kept track of fl ips, as if it were a
badge of honor to change the outcome of a case. It isn’t, pri mar-
ily because fl ipping doesn’t mean you actually are right; it just
means that you have four votes. Moreover, the reasons ca ses flip
vary dra matically. It’s almost never because the origina l draft of
the majority opinion is poorly craf ted. Still, it feels good to f lip a
case your way and it’s painf ul when a case flips away from you.
Another typ e of effective dissent convinces the author of the
majority opinion to change cer tain parts of the opinion, thoug h
without affect ing the outcome. For example, some opinions are
crafted wit h a broad view of the legal issue presented. Then an
effective dissent ca n force the majority to more narrowly tailor
the opinion and leave for another day the broader iss ues. Those
dissents usual ly disappear. Having served their pur pose, they re-
treat to a hidden file or to the shredder, and the seem ing dissenter
joins the more narrowly f ramed majorit y opinion.
Thus, a problem with discussing t he concept of unusually ef-
fective dissents is t hat they aren’t available as examples. Dissents
that flip a ca se or cause a change in the majority opinion a ren’t
published and don’t appear anywhere. However persuasive t hey
might have been, those di ssents are not part of the public record,
though they do remain pa rt of the court’s institut ional memory.
Ineffective Dissents
Sadly, that means that al l of the specific dissents I’m going to
address here, which were published, were ultimately inef fec-
tive. As witt y, scathing, or legally cor rect as they might have
(Continued on 23)
HON. RANDALL SHEPARD
The author is a retired chief justice of the Indiana Supreme Court,
Indianapolis.
After I had been at the I ndiana Supreme Court for several
months, my good mentor and sponsor Ted Lock year called to
complain. “You’re not filing enough diss ents,” he said. “Ted,” I
replied, “that’s because I’m wi nning. Why would I join the los-
ing side just so I can write di ssents?”
As my friend Justice Paul Pfeifer point s out in his art icle
about dissents, the law wi ll be whatever a majority on the court
of last resort concludes it is. Gett ing it right, by persuading other
judges or being persuaded by them, is one measu re of a capable
appellate judge .
Of course, we haven’t always had dissent s. The earliest
American judges followed the Briti sh appellate practice of an-
nouncing their individua l views seriatim so that each judge’s par
-
ticular ana lysis was expressed publicly. That tradition persisted in
the U.S. Supreme Court until Chief Justice John Ma rshall intro-
duced the practice of issuing a sing le opinion for the whole bench.
Marshall believed t hat gave the Court’s decisions more force.
The modern majority opinion often serve s the same purpose,
but dissents play a vital role in both t he outcome of the case and
the longer-term development of the law.
Dissents can plant seed s. One later took root from a dissent
I wrote in State v. Garcia, 500 N.E.2d 158 (Ind. 1986). A major-
ity of our court held that a relatively ordin ary drunk-driving
roadblock was constitutiona l as against a Fourth Amendment
challenge. I dissented on g rounds that the majority had not faith-
fully adhered to federa l precedent, but the heart of the dissent
for future purpo ses consumed the last 30 words. Noting that t he
majority had “not so much as mentioned, much less pur ported
to decide, the rights assu red under... the Indiana Constitution,”
I concluded somewhat pointedly, “I take it that question is to be
decided another day.” Id. at 1 72–73.
Fortunately for my dissent, a nd the Indiana Bill of Rights,
the majority chose to ig nore my point. By adding even just a few
words about the state constitut ion, they could have put me out
of business and made futu re case development on the scope of
our state protection much more diff icult. But they didn’t, and
eventually our cour t held that roadblocks were subject to sepa-
rate Indiana constit utional analysis. State v. Gerschoffer, 763
N.E.2d 960 (Ind. 2002).
That risk to the prospect of fut ure jurisprudential develop-
ment might have been avoided by dissenting wit hout opinion,
