Hunter Smith


Around the turn of the last century, many American lawyers wanted to ban dissenting opinions in all courts of last resort. They derided dissenting opinions as a pernicious waste of time, one that caused uncertainty in the law, shook the public's faith in the courts and was fundamentally inconsistent with the nature of judicial authority. A dissenting opinion, they claimed, was no more than a statement by a judge as individual, but such statements should not be published in law reports. Though the idea never got very far - only one state prohibited the publication of dissenting opinions in official reports - the debate over whether to publish dissent engaged the energies of leading legal periodicals, bar associations, judges and lawyers for a considerable span of years.

The turn-of-the-century controversy over the publication of dissenting opinions has escaped contemporary academic attention. To the extent that the criticism of dissenting opinions has appeared in scholarship at all, it has been understood as an example of "classical legal thought." As one account puts it, because classical legal thought strove to portray "law [as] neutral, objective and prepolitical," it was embarrassed by and adamantly opposed to the public expression of judicial disagreement. In an article on the opinion-writing practices of the Taft Supreme Court, Robert Post quotes some of the lawyers from this earlier era who inveighed against the publication of dissent. He too uses turn-of-the-century articles opposed to the publication of judicial dissent as examples of "a jurisprudential understanding of the nature of law [as] a grid of fixed and certain principles designed for the settlement of disputes," an understanding which he argues the members of the Taft Court gradually abandoned.