Some commentators recently have argued for changes in how United States Supreme Court Justices communicate with everyone except perhaps other Justices of the Supreme Court and the Justices' assistants. Specifically, some commentators have urged that signed opinions and separate opinions, such as concurrences and dissents, stop being published in the official reports. One commentator also has advocated non‑publication of the vote count in Supreme Court decisions. Another has demanded unanimity, as required by due process.
In this piece, I offer my thoughts in response to these proposals.
I argue several reasons to doubt that a prohibition on publication of concurring and dissenting opinions (or a requirement that any publication of such opinions be separate in time and place from the Court's opinion or "naked" decision) would result in the Court deciding more cases than it currently decides or would lead to more agreement among the Justices. I explain why I believe the concerns about ill effects of separate opinions are not empirically well grounded, and why concurrences and dissents have significant salutary effects that their critics do not sufficiently appreciate. My article also argues that Professor Sherry's proposal, requiring action by Congress, would violate the First Amendment rights of the citizenry and the Justices, and would likely affect the processes by which the Court makes, as well as explains and justifies, its substantive decisions, thereby violating separation of powers. Professor Orentlicher's proposal to require unanimous decisions would moot a number of the problems with Professor Penrose's and Professor Sherry's proposals. But the degree to which unanimous decisions would be attainable, and at what costs, remain very open questions.
Open debates do far more for the Court's legitimacy than purportedly univocal utterances and silenced disagreements (even if feasible) ever could do. Separate opinions demonstrate that the process of decision making is legitimate, and thereby both help to insulate the Court from political attacks and give hope to those who oppose particular results that those results someday may be reversed. Thus, the respectful airing of differing, even opposing, views is far more desirable than hiding Justices' differences of opinions.
"Signed Opinions, Concurrences, Dissents, and Vote Counts in the U.S. Supreme Court: Boon or Bane? (A Response to Professors Penrose and Sherry),"
Akron Law Review: Vol. 53
, Article 2.
Available at: https://ideaexchange.uakron.edu/akronlawreview/vol53/iss3/2