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After I had been at the Indiana Supreme Court for several months, my good mentor and sponsor Ted Lockyear called to complain. “You’re not filing enough dissents,” he said. “Ted,” I replied, “that’s because I’m winning. Why would I join the losing side just so I can write dissents?”
As my friend Justice Paul Pfeifer points out in his article about dissents, the law will be whatever a majority on the court of last resort concludes it is. Getting it right, by persuading other judges or being persuaded by them, is one measure of a capable appellate judge.
Of course, we haven’t always had dissents. The earliest American judges followed the British appellate practice of announcing their individual views seriatim so that each judge’s particular analysis was expressed publicly. That tradition persisted in the U.S. Supreme Court until Chief Justice John Marshall introduced the practice of issuing a single opinion for the whole bench. Marshall believed that gave the Court’s decisions more force.
The modern majority opinion often serves the same purpose, but dissents play a vital role in both the outcome of the case and the longer-term development of the law.
Dissents can plant seeds. One later took root from a dissent I wrote in State v. Garcia, 500 N.E.2d 158 (Ind. 1986). A majority of our court held that a relatively ordinary drunk-driving roadblock was constitutional as against a Fourth Amendment challenge. I dissented on grounds that the majority had not faithfully adhered to federal precedent, but the heart of the dissent for future purposes consumed the last 30 words. Noting that the majority had “not so much as mentioned, much less purported to decide, the rights assured under . . . the Indiana Constitution,” I concluded somewhat pointedly, “I take it that question is to be decided another day.” Id. at 172–73.
Fortunately for my dissent, and the Indiana Bill of Rights, the majority chose to ignore my point. By adding even just a few words about the state constitution, they could have put me out of business and made future case development on the scope of our state protection much more difficult. But they didn’t, and eventually our court held that roadblocks were subject to separate Indiana constitutional analysis. State v. Gerschoffer, 763 N.E.2d 960 (Ind. 2002).
That risk to the prospect of future jurisprudential development might have been avoided by dissenting without opinion, though I agree with Justice Pfeifer that doing so is a “bit of a copout.” Still, one can give the parties an idea of one’s position without writing full-scale. Sometimes, “Justice Flywheel dissents on the basis of Smith v. Jones” is just enough.
On other occasions, when you’ve just plain been outvoted, you may be able to cut your losses by reshaping the dissent. When is a concurrence really a dissent? It’s when the author “concurs” with an opinion that tries to weaken the future value of the majority opinion. In St. Vincent Hospital v. Steele, 766 N.E.2d 699 (Ind. 2002), our court wrote some new law about treble damages. The majority opinion seemed to open a door rather broadly, so I added a “concurrence” that emphasized the narrow factual grounds under which we were operating. Calling this a “concur in result” would have suggested I was an outlier; styling it as a friendly “concurrence” made it seem more potent.
Such concurrences may likewise send messages to other actors in the legal system, like legislators. When a contract school bus driver was convicted of child seduction, our court reversed, holding that such a person did not qualify as a “child care worker” employed by the school, as required under the pertinent penal section. Smith v. State, 867 N.E.2d 1286 (Ind. 2007). My concurrence embraced the majority’s adherence to a bright-line rule that contractors were not employees, but that did not detract, I wrote, from the authority of the legislature to broaden the class of persons covered in whatever way it might choose.
Separate opinions—whether styled as dissents or concurrences—can also send important messages to classes of litigants, their lawyers, and interest groups. In City of Vincennes v. Emmons, 841 N.E.2d 155 (Ind. 2006), an apartment owner and the statewide association of owners sought a ruling that local government housing inspectors could enter only if they possessed a warrant issued under the Fourth Amendment. We rejected that argument, and I used a concurrence to tell the association that the viability of systems like periodic safety inspections was a reason supporting my traditional vote against creating a general warranty of habitability for rental units. If inspections were made too difficult, I implied, I might change my posture on that. Be careful what you ask for.
Judges should be strategic about dissents, remembering that successful internal strategy is something learned only through experience over time. And as the famous country-western musician Kenny Rogers sang in “The Gambler,” “you’ve got to know when to hold ’em, know when to fold ’em, know when to walk away, know when to run.” In the world of appellate judging, choosing your battles—and choosing how best to wage them—plays an important role in helping the dissent to remain a voice to the future.