Separate Opinions

We've reached the end of the opinion. The court says reversed or affirmed or what have you. You think you're done, but you're not necessarily done because a fair amount of the time, if you're reading a case in your casebook, there will be another opinion that's going to be after the one you just read, and this is going to be some kind of, what I'll call a separate opinion. Some additional opinion written by a judge, or multiple opinions written by other judges on the court who have something else to say about the case.

There's a wide range of possibilities here. Sometimes someone wants to write what we call a concurrence, where they just say, "I totally agree with everything the court is doing," and that person, maybe they were part of the majority opinion and they voted with the majority. Maybe it's a unanimous decision. Everyone's on the same side, and someone just says, "But I have got some additional thoughts. I think this was an easy case, but I think if there was a different case that looked like this, maybe I would come out differently."

Or maybe someone could be, something looks a little different. They're voting for the same outcome but they have a different reason. Sometimes that's styled like a concurrence in the judgment. Someone will write and say, "I agree that the defendant should lose here, but I think that for a totally different reason. I don't like this thing the majority is saying because that's going to lead to bad results in future cases. Let me tell you my different reasoning."

Dissents

Something you're going to see a lot of are dissents. A dissent is where a judge is saying, "I don't like the thing the majority is doing. I'm voting in a different direction, and I would have had the case come out differently, and let me tell you why." Why do you read these? Why do you read these separate opinions? They're not the law, in the sense that a dissent is not going to bind anybody. If the opinion is really binding, it's going to be the stuff in the majority opinion, usually.

There are situations that you're going to encounter, especially when you read US Supreme Court decisions, where there's not actually a majority opinion, but there's what we call a plurality and a concurrence. Let's say it's a five to four decision, five votes on one side, four votes on the other side, and then four people write one opinion, and then one other justice writes their own separate opinion and says, "I've got a different take on the case."

There's actually some complicated rules about figuring out which of those two opinions controls. You don't just count the number of justices, but I don't want you to get into that. That's something to be aware of is sometimes there are things that look like separate opinions, but they actually aren't the thing that matters.

A dissent isn't that. A dissent is someone saying, "I know I lost. I'm mad about it. Let me tell you why I think something should have come out differently." Why do we sign that? Well, there's a lot of different reasons. Sometimes it's just to help you show different kinds of legal reasoning, help you understand how these are hard issues, maybe help you have a debate in class. "Who do you think is right, the dissent or the majority?"

Sometimes the dissent will ultimately get the better of the argument. You'll read a dissent and then you'll learn by reading a later case, actually, the position in the dissent, it didn't win in 1950, but it became the law forty years later in 1990.

There could be a lot of reasons. Assume that if you're reading a case and a dissent has been included, it's there for a reason, and that your casebook author and/or your professor have chosen to include the dissent because they think it's interesting, because they think it's important, because there's some important rule of law that you might extract from it that might help you understand a rule better. Lots of different possible reasons.

I think some students think, "I just read the majorities, and the dissents are just there for window dressing." I don't think that that's right because, especially in the classes I teach, sometimes the dissents are really important. Sometimes the dissents end up telling you where the law might go as the membership of a court changes.

At the very least, reading the dissent is going to help you have a richer understanding of the reasoning of the majority, because you say, "Okay. Majority gives these five reasons, but the dissent has this other argument that's really compelling. Let me try to understand why the majority ultimately went in this other direction."

Let's just take a look at Jewell, our example case. Here we have one separate opinion and it's a dissent by then-Judge Anthony M. Kennedy. He actually later is a Supreme Court Justice. He's the justice that I ended up clerking for. It's not the reason I chose this case, but it is a nice bonus. This is very early in his judicial career. He'd been on the Ninth Circuit for a little bit more than a year, and he doesn't become a Supreme Court Justice for more than another decade after this.

He writes this opinion, and looks like he's joined by three other judges from the Ninth Circuit and they want the case to come out differently. They didn't like the jury instruction here. A separate opinion doesn't need to be as long as the majority, typically. Sometimes they're longer, but it doesn't need to include stuff that the majority includes, like the facts, the procedural posture. It really can just be all reasoning, and then the person explaining why that reasoning leads them to think the case should come out a particular way.

Looking at Jewell, Judge Kennedy goes through some reasoning. First, he says, "Look, I see some problems with this old common law willful blindness doctrine. It's really not the same thing as knowledge. It also is kind of vague. It's uncertain in scope, so I have some problems with it. I like, instead, this Model Penal Code section, Section 2.02[7]," which you'd remember from our previous lesson that it was something it seemed like the court was relying on and thought it was actually helpful to the court and helped it reach the result that it reached.

He says, "Actually, no. This is different. This is different than what the majority is doing, because if you look at the jury instructions here, they don't have anything about this high-probability requirement that the Model Penal Code has." Then he gives an example of how someone could form a conscious purpose to avoid learning the truth. Let's say, bring a package, a present, home, but not actually be aware of a high probability that, say, there are drugs inside the package.

Since the second problem is it doesn't actually tell the jury that you can't convict him if he doesn't actually believe there's no drugs in the car. This is another thing that the Model Penal Code does that he thinks is important. Likewise, it doesn't state he couldn't have been convicted even if he was not actually aware.

He says, "I think it would have been better to actually use the Model Penal Code requirement, and this is different. In my view, these were erroneous, because they would have permitted the jury to convict the defendant without being certain beyond a reasonable doubt that he actually had knowledge, that the court has basically watered down the knowledge requirement, and that's why I disagree with the court," and then he has his own line that looks like his version of the disposition. It says, "We would reverse the judgment, so we would reach the opposite bottom-line result in the case. We vote differently and we think the case should come out differently."