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Kermit V. Lipez

Abstract

In the collegial world of appellate judging, where the dominant impulse is consensus, dissents depart from the norm. If their language is sharp, the dissents may offend colleagues and worry court watchers who expect consensus. These self-assigned opinions also add to the pressures of the work. Given these implications, the choice to dissent should never be a casual one. You must weigh the institutional and personal costs and benefits, understand the purpose of the dissent and the audiences for it, and always be attentive to style and tone. In a haphazard sort of way, I consider these issues when I write a dissent. But doing a job over time can instill the dangerous notion that you know what you are doing. You tend to ask yourself less pointed questions, and you are more likely to make a mistake. I have now been an appellate judge for over ten years, first on the Maine Supreme Judicial Court (Law Court) and now on the United States Court of Appeals for the First Circuit. I wrote twenty-four dissents during my four years on the Law Court. I have written fifteen dissents during my six and a half years on the court of appeals. I have no idea whether these numbers are large or small. I have not compared them with other judges, and I am not suggesting that I dissent more than other judges. These numbers only describe my personal experiences with dissenting. With more dissents in the offing, it is simply time for some reflections on what I have been doing. I have reviewed some of the legal commentary on dissents and my own dissents. On the basis of that reading. I have some information and observations on dissenting that I would like to share. In doing so, however, I must extend an apology to past and present colleagues. To make some of the points I wish to make, I quote from my own dissents, sometimes approvingly. I also describe my view of the case when I use these quotes. This approach is a bit unseemly and unfair. My dissents were written in response to the majority opinions of exceptionally able, fair-minded judges. My disagreements never diminished my respect and admiration for them. But if readers want the rest of the story in the cases that prompted my dissents, they will have to read the majority opinions of my colleagues. This article is not about those cases. Instead, it is about the practice and process of dissenting, with my own dissents as part of the inquiry. When cited, they are offered as examples, not exemplars.

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