In the common law world, judges are required to write opinions that justify their decisions. The holdings and reasoning in these opinions then become the law. Generally speaking, there are two sorts of opinions. First, there are opinions offered by the court that state its decision and the reasons for it. Second, there are dissents, which explain why the dissenting judge cannot join the majority’s opinion. There is also, however, an almost completely forgotten, third kind of opinion that is worth thinking about: a dubitante or dubitans.
Cardozo called the dissent an appeal to the brooding spirit of the law. His idea was that the dissenter’s role is to sound the alarm against a law that is going off course and call it back to a better way. The idealized dissent is one where a judge calls forward to future courts, which ultimately hear his or her voice and reverse the course of the law. There are a number of famous dissents that follow this pattern, such as Holmes’s dissent in Lochner, a case striking down economic regulations as unconstitutional. Holmes famously argued that the constitution does not enact Herbert Spencer’s Social Statistics, and two generations later the Supreme Court agreed with him and reversed Lochner. Another example is the dissent of Justice Harlan in Plessy v. Ferguson, the case upholding racial segregation laws from constitutional attack. Justice Harlan insisted that “in the view of the constitution there is in this country no superior, dominant, ruling class of citizens. There is no caste here.” Fifty-eight years later the Supreme Court reversed Plessy.
There is a powerful mystique to the dissent. The image of the lone voice of integrity and the Jeremiah calling forward to a more enlightened future has an undeniable attraction. Unfortunately, as any lawyer can tell you, the dissent is a powerful myth that more often than not becomes a tired cliche in practice. Most dissents are not worth reading, and as often as not they represent little more than exercises in personal vanity by the judges writing them. To be sure, there are still dissents that eventually get to live out the heroic dream articulated by Cardozo, and there are even dissents that serve wilier, more pedestrian purposes, such as Justice Brennan’s thinly veiled instructions to more liberal lower court judges on how to circumvent conservative court holdings. The sad truth, however, is that the vast proliferation of judicial dissents in the modern era is mainly sound and fury signifying nothing.
The dubitans represents a humbler approach to judicial disagreement. Usually there is no written opinion accompanying a dubitans but only the note “dubitante” next to the name of the judge. This indicates that the judge joins in the majority opinion, but that there are certain aspects of it that he doubts or is unsure of. I am a bit foggy on the history, but I believe that there was a time when dubitante could even take the form of a holding, with an appellate court simply ruling that they did not know the proper answer to the case brought before them, and hence there was no reason to disturb the lower court’s decision. The dubitans is not a jeremiad or some prescient call to a better future. Rather, it is a way for a judge to indicate that he or she reaches her decision “with fear and trembling” and acknowledges the inherent appeal and power of competing, even if ultimately rejected, approaches.
The dubitans strikes me as a useful way of managing religious questions or ecclesiastical disagreements. The binary of holding and dissent suggests that the only response to doubt or disagreement is articulate abstention, a withdrawing of oneself from the court and a seeking of solidarity with, at best, some imagined future. To be sure, there are times when dissent is called for, but I suspect that for many (perhaps most) questions or disagreements in the household of God the dissent is too blunt an instrument. A dubitans is an affirming vote, but one that acknowledges the uncertainty of the hand being raised.
Very nice. Thanks, Nate. Now if only our present judicial system would sometimes exercise a bit of self-restraint or show any “fear and trembling” that evidences their frailty before the momentous questions of the day.
Where did you come across this, Nate Oman? I would love to have something to show to folks I was telling about this.
I learned about it from my judge, who was a historian specializing in medieval law in an earlier pre-judicial life. There is an entry on dubitante in Black’s law. My understanding is that you have to go very, very far back in the case reports to find any dubitans (like way back into the Year Books.)
BTW: Adam, you have access to free Westlaw. Why don’t you do a public service, and run some searches in ALLCASES and ALLCASES-OLD and see if anything comes up.
I’ll share my results, but only if you promise to send a link to the LDS Law list.
There is a good argument to be made that later courts agreed with Harlan’s dissent, not Holmes’.
Just a random note Nate … at the Yankee game last night I ran into a LDS friend who let me know he lurks here at T&S. One of his comments … “I like what that Nate Oman guy writes” …
OK … end of threadjack.
Nate, does ALLCASES-OLD include case from the Year Books?
You also left out the currently present third-category that interrupts the binary nature of holding and dissent that you focus on. The concurring opinion of today very much plays the role you ascribe to the medieval dubitans. You wrote
In the modern concurring opinion, the judge joins the majority holding but writes separately to point out what he or she believes to be an important distinction of interpretation. This is perhaps an even better way to look at managing religious or eccelsiastical disagreements. One can join in the majority holding, i.e. in the LDS context, the “mainstream of the Church,” while still exploring what are perceived to be important distinctions in interpetation or practice. This avoids the acrimony (and often arrogance) of full-blown dissent while still achieving discourse and provoking future thought or exploration. It is perhaps less humble than the simple “dubitante” written by a name, which, as you noted, can simply imply that the judge so designated doesn’t know the answer. But this feeling can be conveyed as well in the modern designation of “concur” when the judge does not write separately to explain the concurrence rather than joining the majority.
It was Social Statics.
Here goes:
In Westlaw, 627 modern cases use either ‘dubitans’ or ‘dubitante.’ Some of these cases use ‘dubitante’ roughly the way they would ‘arguendo,’ as in ‘even assuming, dubitante, that X were the case, we would still hold . . . ‘ Even excluding these cases, there are 562 modern uses, though many of them just use ‘dubitante’ as fancy way of saying ‘doubtful.’
When judges were concurring dubitante, I couldn’t find any real rhyme or reason to their decision to concur in that form, other then that they weren’t happy with the majority opinion in some way. Some of the time, it was in fact because they thought the majority was probably right but that the issue was complex and doubtful. (One judge even wrote to say that he joined the majority’s opinion but didn’t like their enthusiasm for the result.). Here are some representative recent cases:
Schlaflin v. Borowsky, 128 Fed.Appx. 258 n. 2 (3rd Cir. 2005):
City of Burbank v. State Water Resources Control Bd., 35 Cal.4th 613, 634 (Cal. 2005) (Brown, J., concurring dubitante):
Credit Suisse First Boston Corp. v. Grunwald, 400 F.3d 1119 (9th Cir. 2005) ( Berzon, J., concurring):
Majors v. Abell, 361 F.3d 349 (7th Cir. 2004) (Easterbrook, J., dubitante).
A modern use identical to the ones you describe is in U.S. v. Boyce, 351 F.3d 1102 (11th Cir. 2003). In that case, Judge Propst concurred dubitante without further comment. Perhaps the most interesting example of this is First Union Nat. Bank of Georgia v. Floyd, 400 S.E.2d 393 (Ga. App.1990) in which one judge wrote an opinion, one judge concurred dubitante without further comment, and one judge joined in the judgment only without further comment (this must have been a fairly fractious panel. In Carter v. State, 395 S.E.2d 891 (Ga.App. 1990) the same set of judges wrote three separate opinions, one labeled a concurrence dubitante and one labeled a special concurrence). In all, there were only a handful of such cases. often from the same judge.
I was most interested in finding whether any majority opinion had stood dubitans. There as nothing in ALLCASES or in ALLCASES-OLD. This is unfortunate.
Setting aside questions of vanity and/or sound and fury signifying nothing in dissents ecclesiastical and legal, here’s my dissent to your thesis, Nate:
I guess I like the idea of a dubitante opinion with an accompanying discussion, i.e., a thoughtful concurring opinion: “I’m not so sure. X, Y, and Z problems trouble me, but I don’t have an easy answer. It occurs to me that A, B, and C are promising approaches to address this problem. I’ll join the majority, but do so reluctantly.”
In refusing to reveal what its author is thinking, the affirming-yet-doubting approach risks nothing. The great thing about dissents—and I mean both formal dissents and your everyday contrarian exchange (I think of many comments here or the way I relate to my overeducated lawyer pals)—is that there is an element of risk. The risk of getting it wrong, of saying something stupid, of attacking a well-crafted argument-fortress with nothing but a rolled-up newspaper. When one has a gut feeling that the majority has got it all wrong, but is still searching for how to articulate why it is wrong, a dissent/concurrence is a good place to work things out, to take a risk, to commit to possible alternative approaches. Even a dissent/concurrence that is simply wrong may advance the ball by marking out unfertile ground. Of course, unwillingness to continually revise and rethink—becoming too attached to one’s dissents—may be a problem.
Incidentally, (to put my comment in the Mormon context), this brings to mind Terryl Givens’ thoughts about Joseph Smith’s approach to revelation presented at the Library of Congress earlier this year: that it sometimes included thinking out loud. That it required freedom from being backed into a corner by previous statements; freedom to revise and rework.
Curse you, John Fowles! You may have posted the concurrence thought first, but it occurred to ME first! Imagine happy emoticon here indicating that I am mostly just kidding.
Nate,
Pardon my ignorance — but what sort of stare decisis effect do such dubitante opinions enjoy? Is the idea that a majority of judges decide a matter a certain way — tentatively — but are open to revisiting the issue after the passage of time and want to signal that willingness to treat their opinion with less precedential effect than other pronouncements?
Religiously, is the dubitante a Pascalian wager? That is, given uncertainty about the truthfulness of a proposition, we hedge our bets and adopt that proposition, even if somewhat tenuously — because of the possible consequences of failing to adopt it (i.e. eternal damnation). I have grave doubts that religious Pascalian wagers work as they don’t produce faith necessary for salvation.
I think the modern analogue to the dubitante is the simple “I concur in the result only.”
I think the “dubitante” may be a fine way for a worshipper to handle religious questions, but I’m quite sure it’s neither a commendable or humble way for a judge to deal with legal disputes. The parties to the case, as well as lower courts and future primary actors, want your view, even if it is a humble and unsure one. If you concur in the result, but not the reasoning, I think it is your obligation to say why rather than fold and put your cards at the bottom of the deck. When I have seen a judge do this, it seems to me to be a way of hiding the fact that the judge fundamentally disagrees with the doctrine that requires the outcome, but knows the outcome is right in this particular case (say, agreeing to reverse a death penalty conviction on Batson grounds, where there is inadmissible evidence of innocence). It’s the easy way out.
Shawn, you put it better anyway.
Greg and Tuan (nice to see you btw): I also think that there are problems with judge’s issuing dubitante opinions. My understanding — again based on a brief conversation more than a year ago with my judge — was that back in the day (as in back in the time of the Year Books, ie the late medieval period) — if an appelate court issued a dubitante opinion it left the lower court decision in place but did not have any precedential effect. It woud be rather as though you took an appeal as of right to a federal circuit court and that court responded by saying “We don’t know the answer, so we won’t over rule the lower court.” This opinion would not be citable for any proposition of law.
Tuan: Pascal might not be a bad analogy. I agree with you that if one is dubitante on all things you run into problems, but it seems to me that we benefit from having some category of doubt or unease that is not simply dissent.
I want my name on the ward callings list to read “Sunday School Instructor, Dubitante”
Nate, in noting the sometimes glorious (Holmes, Harlan), sometimes dismissable aspects of dissenting, you left out the dangerous aspect of dissenting. The fact that a judge has dissenting X number of times has been ammo for politically motivated efforts to reject judicial nominees in the recent Senate fights over judicial nominees. For example, even though Justice Brown had written many majority opinions on the California Supreme Court during her long tenure there, detractors from her nomination to the D.C. Circuit Court of Appeals pointed to how often she had dissented, claiming that this was evidence that she was out of the judicial mainstream. Take for example this bit of frothing at the mouth:
I hardly think that these same people are willing to look at Holmes’s or Harlan’s dissents and use them as evidence that they propounded an extremist ideology and philosophy outside the mainstream.
Also, look at the present Supreme Court and e.g. the dissents of Justice Scalia or Thomas. With majority holdings and dissents now falling out along more clearly identifiable political lines, it difficult to imagine that a Scalia dissent, take, e.g., his dissent in Roper v. Simmons (October 13, 2004), will one day be recognized as a “glorious” call “forward to future courts, which ultimately hear his or her voice and reverse the course of the law.” And this despite of the consistency in Scalia dissents, all pointing prudentially to judicial encroachment into the prerogatives of democratically elected legislatures to create law. In the first paragraph of his dissent in Roper v. Simmons (read the opinion here), Scalia wrote
Will this at some future day be a call that future judges hear in reining in the court’s role in speaking on value-judgments better left to politically accountable legislatures? Those with a certain political persuasion sure hope so. But this is now an entrenched and often argued position. Scalia speaks loudly to future courts, both in this dissent and many of his others. He writes
Christopher Simmons, who was only seven months shy of his 18th birthday when he murdered Shirley Crook, described to his friends beforehand–“[i]n chilling, callous terms,” as the Court puts it, ante, at 1–the murder he planned to commit. He then broke into the home of an innocent woman, bound her with duct tape and electrical wire, and threw her off a bridge alive and conscious. Ante, at 2. In their amici brief, the States of Alabama, Delaware, Oklahoma, Texas, Utah, and Virginia offer additional examples of murders committed by individuals under 18 that involve truly monstrous acts. In Alabama, two 17-year-olds, one 16-year-old, and one 19-year-old picked up a female hitchhiker, threw bottles at her, and kicked and stomped her for approximately 30 minutes until she died. They then sexually assaulted her lifeless body and, when they were finished, threw her body off a cliff. They later returned to the crime scene to mutilate her corpse. See Brief for Alabama et al. as Amici Curiae 9-10; see also Loggins v. State, 771 So. 2d 1070, 1074-1075 (Ala. Crim. App. 1999); Duncan v. State, 827 So. 2d 838, 840-841 (Ala. Crim. App. 1999). Other examples in the brief are equally shocking. Though these cases are assuredly the exception rather than the rule, the studies the Court cites in no way justify a constitutional imperative that prevents legislatures and juries from treating exceptional cases in an exceptional way–by determining that some murders are not just the acts of happy-go-lucky teenagers, but heinous crimes deserving of death. . . .
Moreover, the age statutes the Court lists “set the appropriate ages for the operation of a system that makes its determinations in gross, and that does not conduct individualized maturity tests.” Ibid. The criminal justice system, by contrast, provides for individualized consideration of each defendant. In capital cases, this Court requires the sentencer to make an individualized determination, which includes weighing aggravating factors and mitigating factors, such as youth. See Eddings, 455 U. S., at 115-117. In other contexts where individualized consideration is provided, we have recognized that at least some minors will be mature enough to make difficult decisions that involve moral considerations. For instance, we have struck down abortion statutes that do not allow minors deemed mature by courts to bypass parental notification provisions. See, e.g., Bellotti v. Baird, 443 U. S. 622, 643-644 (1979) (opinion of Powell, J.); Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 74-75 (1976). It is hard to see why this context should be any different. Whether to obtain an abortion is surely a much more complex decision for a young person than whether to kill an innocent person in cold blood.
Oops, Roper was argued October 13, 2004 and decided March 1, 2005. Also, the blockquotes above are messed up.
Nate,
It strikes me that “dubitans” has some utility because it is a lot easier to say than “supercalifragilisticexpialidocious” and apparently serves the same function as something to say when you don’t know what to say and is probably just as silly:
So when the cat has got your tongue
There’s no need for dismay
Just summon up this word
And then you’ve got a lot to say
See for http://www.geocities.com/Broadway/Stage/7840/super.htm
On the other hand, applying the later term to LDS doctrinal disagreements may be particularly appropriate. Can you imagine, responding to a heated discussions on pre-Adamites being ended with “supercalifragilisticexpialidocious!”
On a serious note, the term “dubitans” has been used in a number of treatises on civil law (i.e., in Making of the Modern Law), but I haven’t had time to dig deeply on the subject.
As you can tell, after a long absence, I still have my doubts about the merit of applying legal thinking to gospel questions.
Paul
I just want to shout out to my old roommate Tuan Samahon, undoubtedly now a lawyer extraordinaire. What’s up, Tuan?
Nate,
In terms of precedential effect, how would a dubitante differ from today’s non-published opinions?
Scalia’s dissents do serve a useful function, John Fowles. They get into the law textbooks and proselyte the next generation of lawyers. I have to imagine that to some degree he writes them self-consciously. By relying on originalist arguments in their dissents, Thomas and Scalia also create a market, so to speak, for originalist research. Lots of times you’ll see Thomas take a radical originalist position, law reviews attacking his account of the original understanding, law reviews attacking the first wave of attacks, etc.
The term reminds me of writ ref’d n.r.e. (writ refused, no reversible error). Much weaker than affirmed or writ refused, it was, in Texas, a “well, we didn’t take the case on appeal, but that doesn’t mean we approve of it” sort of citation.
Note that the Harvard citation pattern is not followed by Texas courts for Texas as it drops out information Texas lawyers and judges find very important.
Unlike Paul, I think this idea of concurring in result only is an interesting one when applied to the gospel. It seems to me a potentially helpful way to get people to focus on what we agree on, which often is a lot–both inside and outside Mormonism. Still, this concept quickly begs the question–what exactly is the “result” that we are concurring in? That God exists? That Jesus is the Christ? Or is it something more specific to Mormonism, e.g., that Joseph Smith restored the gospel, or that President Hinckley is a Prophet? Perhaps the result concurred in could consist of commonly accepted answers to the temple recommend questions. Even then, questions will quickly arise as to how far one can take a particular position before that person is no longer really concurring in the result. In short, some will advocate that Mormonism is a big tent that allows for broad diversity in viewpoints, while others (perhaps most?) will insist on something more narrow.
Still, if nothing else, Nate’s construct gives those with a more traditional or narrow view a way to think about disagreement without having to resort to cries of apostacy. Excellent post, Nate.
An important distinction between concurring in result only and the dubitante, as applied to the gospel, is that the former only acknowledges areas of difference and agreement, while the latter also acknowledges that our areas of disagreement are tentative (and perhaps also of agreement?)
Adam, I’ve not read all the cases you cite above, but BLD defines “dubitante” in these terms: “Doubting. Term is affixed to the name of a judge, in the reports, to signify that he doubted the decision rendered.” There is nothing here signaling “tentative” disagreement. From what are you making tentative/permanent distinction?
Perhaps what you are saying is that we believe that some day the answers to the mysteries of the gospel will be made known. Hence, our current disagreements are only tentative. If that is in fact what you are saying, then why do you say that CRO doesn’t/can’t capture that thought, but dubitante does?
The dubitante reflects tentativeness because the judge says that he has his doubts about the majority opinion but still concurs. If his doubts were anything but tentative, I presume he would simply dissent.
Nothing about the concurrence in result implies tentativeness, though it doesn’t preclude it.
I don’t agree with you here. You can have doubts about the underlying reasoning supporting the majority opinion, but remain confident that the majority reached the right result.
For example, in the Easterbrook decision you cite above, Majors v. Abell, 361 F.3d 349 (7th Cir. 2004), designated as “Easterbrook, J., dubitante,” he states: “Given McConnell, I cannot be confident that my colleagues are wrong in thinking that five Justices will go along [with Indiana’s regulation of political speech]. But I also do not understand how that position can be reconciled with established principles of constitutional law.” I don’t see this as a tentative conclusion at all.
Perhaps you are right in your assessment; I just haven’t seen anything that supports the distinction you are making.
What distinction do you see between a concurrence in the result and concurrence dubitante, then?
Randy B.: Easterbrook is not a valid example, I think. The man is constitutionally incapable of writing or speaking a tentative sentence. He deals strictly in declarative certainties….
To the extent there is a difference, I think it would be that dubitante indicates doubt in the correctness of the reasoning (might be wrong, might be right), whereas CRO does not come with that caveat. In other words, you can CRO and be absolutely convinced that the majority got it wrong on the reasoning though right in result. Dubitante seems to signify less certainty that the reasoning is faulty. (Of course, as you note above, you could CRO for precisely this reason.)
Anyway, the notion that the disagreements held by the majority/minority are only “tentative” doesn’t make sense to me, unless (as with the gospel) we can be sure that the answer is coming later. But even then, who’s to say if that future information will support or undermine the view of the majority. Perhaps I am misunderstanding you, but I can’t envision what a dubitante opinion would look like with your spin on tentativeness. “I doubt that the reasoning of today’s ruling is correct, but that doubt is tentative. I suspect that I might (will likely?) come to agree with it at some point in the future.” Do judges really say that?
I suppose this could be more plausible in a gospel context. For example, one might say: “I currently think that only men should hold the priesthood, but that position is tentative as I may (will likely?) come to believe otherwise at some later point.”
Nate, what federal judge is?
I say that only half in jest. Is there a better example of a judge holding “tentative doubts” in the sense that Adam seems to be talking about?
Irrespective of that, how does this sense of tentativeness apply when the analogy is applied in the gospel context. Is it enough that we agree that our disagreements and doubts are based on imperfect information and thus must necessarily be tentative, keeping in mind our mutual belief that these disagreements will be resolved to our mutual satisfaction at some later point, though in whose favor we cannot be certain? Or must one of us take the additional step of saying “I think I will eventually come to agree with you, though today I doubt that you are right”? The later seems like a fairly odd thing to say.
More on the danger of dissent here. Not only have the dissents written by conservative judges been used as a supposed indicator that they espouse extremist ideologies in an alarmist bid and scuttling their nominations to the federal appeals court, but Scalia’s dissents are making him an unlikely candidate for chief justice should Rehnquist retire. Apparently, even though he is a justice of the Supreme Court of the United States, Scalia is not a judge-like (judicious?) person: