The Reluctant Dubitante

Readers of a certain age—say, Senior Lawyers Division vintage—can be forgiven for thinking this is an article about a 1958 movie starring Rex Harrison and Sandra Dee. But that movie was called The Reluctant Debutante. Look closely and you’ll see that the first two vowels in Dubitante differ from those of Debutante.

Don’t feel bad if you don’t know what dubitante means. Most lawyers are in the same boat. Ask them to name the categories of judicial opinions, and they’ll quickly reel off majority, concurring, and dissenting (including concurring in part and dissenting in part). Then, after a moment of reflection, they may remember per curiam and, if they think really hard, plurality.

But, in fact, there is one more. As you’ve guessed by now, it’s called dubitante. It’s easily forgotten because it is far and away the rarest of opinion categories. How rare? A 2006 law review article on the subject counted just twelve dubitante opinions in the history of the U.S. Supreme Court and just four references by that court to dubitante opinions of Justices themselves. J.J. Czarnezki, 39 Akron L. Rev. 1.

In the lower federal judiciary—district courts and courts of appeal—dubitante opinions are also infrequent and appear to be concentrated among a few judges. The 2006 article cited above calculated that nearly half of all dubitante opinions had been written by just four judges.

Dubitante opinions are generally equally rare in state courts, but an October 15, 2024, article in The National Law Journal reports that they are more common in Georgia appellate courts than in the federal system.

What is a dubitante opinion? Let’s start by defining the term. Dubitante is Latin for doubting. It’s probably safe to say that in American usage, the term virtually never appears outside the legal context, and then only rarely.

Why do judges issue dubitante opinions? The explanation lies in the term itself: dubitante. Judges write dubitante opinions because they have a doubt about some aspect of the majority opinion.

But if they have doubts about the majority opinion, why do they go along with it? Why don’t they dissent? (The late James C. Hill attached the term dubitante to dissents as well as concurrences, but he was clearly an outlier.)

Again, the explanation lies in the term dubitante. These judges have a doubt--not a conviction-- that the majority is wrong about some issue. Often, they make their doubt explicit, as when Judge Friendly stated, “Although intuition tells me that the Supreme Court of Connecticut would not sustain the award made here, I cannot prove it. I therefore go along with the majority, although with the gravest doubts,” in Feldman v. Allegheny Airlines, 524 F.2d 384.

The above-noted National Law Review article quotes Judge John Bush as acknowledging that he uses dubitante opinions as a means of flagging issues for the U.S. Supreme Court: “I’ve used it in these two cases where we have Supreme Court precedent that binds us to the outcome.”

The dubitante opinion provides judges with an opportunity for nuance--something of a middle ground between all-out concurrence and dissent. But it also can create problems, or at least issues, in a common law system built on judicial precedents.

For example, what do we make of an opinion labeled simply dubitante rather than concurring dubitante? What if counting it as concurring would make it the fourth concurrence on a seven-judge panel or the fifth on a nine-member panel, like the U.S. Supreme Court? Doing so would mean the court has a majority. Failing to do so would mean there is no majority.

And what is the effect of a dubitante opinion on the precedential value of the court’s decision? Does the answer depend on the issue for which the decision is being cited? Is the precedential value of the decision less for the issue that is the subject of the dubitante opinion than for all other issues in the decision?

These are some of the issues created by judges who write dubitante opinions—judges who, like debutante Sandra Dee in the 1958 movie, are reluctant: reluctant to wholeheartedly join in a concurrence, reluctant to write a dissent, and even reluctant to say that the majority got something wrong.

Here’s another question to ponder: If a higher court later confirms the validity of a dubitante opinion writer’s concern, can that writer crow, I nearly told you so!