Eliminating Dissents? We, um, Dissent

A former New Hampshire Supreme Court justice is making a plea to eliminate dissenting opinions at the U.S. Supreme Court in hopes of increasing public confidence in our country’s judicial system and the Court itself. In a recent opinion column published in The Boston Globe, former N.H. high court justice Joseph P. Nadeau notes a recent Pew Research Center poll where only 52 percent of the respondents said they had a favorable opinion of the Supreme Court. That number represents the lowest rating since the poll was first conducted in 1987. Nadeau attributes the low marks to the high court’s growing number of 5-4 rulings and the increased vitriol in dissenting opinions.

By eliminating dissenting opinions, Nadeau predicts increased public confidence in the Court based on the creation of one clear opinion in each case. He says bitter dissents contribute to the impression that the Court is subject to political influence and the notion that non-unanimous decisions are somehow less significant than others issued by the Court.

Working to increase confidence in the judicial system is a noble goal, but the elimination of dissents is a bit radical, to say the least.  Supreme Court dissents are not only useful, they sometimes become more influential to legal reasoning than the majority opinion that they are rebutting.  More importantly, dissents clarify the underlying legal debate in a way that is consistent with two of the strongest tenets of American life: democracy and free speech. A well-reasoned dialogue between justices provides a clarity and transparency that actually enhances respect for the Court. 

While it is true that rancorous or sarcastic dissents do little to advance the goals of justice, it is the rancor that represents the problem, to the extent there is one.  Perhaps tamping down the more biting aspects of dissent would achieve Nadeau’s goal of increasing public confidence. It is certainly better than getting even less information from the Court about how it makes its decisions. 

Posted: 7/16/2012 6:14:47 AM by Editor | with 0 comments

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Thanks for stopping by On the Merits, the first blog from the Texas Center for Legal Ethics. On the Merits will take a close look at significant legal stories with an eye toward addressing the legal myths and misconceptions that turn up in news stories, movies, TV programs, websites, anonymous emails and other forms of mass communications. Our goal at On the Merits is to provide readers with a thoughtful examination of what the media and others are saying about the legal profession and to apply the frequently-absent context of how the legal system actually works.

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