As an appellate judge, I have often pondered the interplay between collegiality, consensus, and dissent, especially since reading a recent Law Journal article on the subject. Andrew Denney, Can the NY Court of Appeals, Comfortable With Debate and Dissent, Foster Consensus?, NYLJ (Sept. 26, 2018). It was an interesting read, but I could not help but contemplate whether we should instead be asking if consensus-building should always be the goal of a Chief Judge (or a Presiding Justice). And is it problematic for a court to be “comfortable with debate and dissent”? There is, of course, no bright-line rule as to what percentage of an appellate court’s decisions should be unanimous. Consensus and dissent may ebb and flow, but collegiality—cooperation and civility among colleagues—must lie at the heart of each.
Collegiality and independence form the bedrock of a judiciary in a democracy—a form of government in which many citizens (even, at times, just under 50 percent) may disagree with the prevailing view but choose to accept it without resorting to Hobbes’ “state of nature,” because their voices are heard and there is a chance that, in time, their view will become that of the majority. Indeed, we can be collegial without reaching consensus, and while valuing dissent.
I was named Presiding Justice of our Court concurrent with the appointments of four new Associate Justices. From the start, my veteran colleagues and I endeavored to integrate the “rookies” into the Court, by meeting with them to explain our procedures and common practices, sharing lessons learned from years of experience, and inviting them to our regular group lunches. Breaking bread is an indispensable way in which to cultivate a collegial atmosphere, and I encourage my fellow judges to have lunch together often.
Collegiality, however, is not synonymous with consensus, nor does the presence of the former necessarily result in the latter. No matter how hard we might work to foster collegiality or seek consensus, we must recognize that judges are individuals, with their own prisms through which they interpret the law. The process of adjudication by panels of appellate judges relies on debate, and judicial independence requires that judges decide every case that comes before them based on their own analyses. This will inevitably result in any number of concurring and dissenting opinions, which sometimes require publication when, after circulation to the panel, the outlier(s) cannot convince the majority to compromise on its ruling (e.g., the breadth of it, the cases cited, or the language used).
Importantly, dissent is not antithetical to collegiality. In fact, dissension should have a negligible effect (if any) on collegiality in the world of appellate judging. Of course, “the act of writing a dissent can have unintended consequences, particularly if [it] consists of unnecessarily harsh language.” Hon. Leroy Rountree Hassell Sr., Appellate Dissent: A Worthwhile Endeavor or an Exercise in Futility?, 47 How. L.J. 383, 387 (2004). The same is true of a majority opinion that strikes at a dissenting colleague in flagrantly harsh terms. Still, “[r]ather than thinking of collegiality and dissent as binary, mutually exclusive opposites, it is possible to regard collegiality as a quality that may be present or absent—even in a dissent.” Hon. Bernice B. Donald, The Intrajudicial Factor in Judicial Independence: Reflections on Collegiality and Dissent in Multi-Member Courts, 47 U. Mem. L. Rev. 1123, 1144 (2017).
Fortunately, judges are not shrinking violets (or, at least, we shouldn’t be). We can withstand criticism in the press without responding with a public comment. We can endure the harsh words of litigants who are disappointed, or even outraged, by our decisions. And our relationships can sustain—even be strengthened by—candid disagreement with colleagues over the just outcome in a given case.
Appellate judging is a contact sport, and we should not shy away from airing our disagreements publicly (and civilly). Collegiality incorporates teamwork as an element of decision making, and each teammate has a right, indeed an obligation, to improve the team by sharpening the issues and our writings—without sharpening the knives.
Personally, those times when I have had the strongest disagreements with my colleagues (former Justices James M. McGuire and James M. Catterson, for example), my writing has been at its best. Our Court’s split decision in Fields v. Fields, 65 A.D.3d 297 (1st Dep’t 2009), aff’d 15 N.Y.3d 158 (2010)) is, I think, a good example of this. It is frequently through the process of exchanging opposing writings, the back-and-forth of challenging one another and exposing weak arguments, that our best work—and perhaps a more soundly reasoned result—shines through. It is also where our biases can be revealed and dissipated—all cases, particularly matrimonial ones like Fields, have the potential to invoke our biased viewpoints, which may be tempered through discourse and the exchange of writings with colleagues who hold the opposing view. As another former colleague of mine wrote, “it’s nice to have consensus, especially if that can be brought about in a collegial fashion. But, an intermediate appellate court should be a place where the legal issues in a case can be thrashed out in clear opposing writings.” David B. Saxe, Riding the Learning Curve as a New Appellate Division Judge, 88 N.Y. St. B.J. 45 (February 2016), at 46.
In other words, iron sharpens iron.
Opposing writings are also essential to the rigorous development of legal precedent and policy. I agree with Chief Judge DiFiore that “unanimity is always valued, but it’s never exalted over the correct or right product.” Denney, supra (internal quotation marks omitted). Dissenting opinions regularly lead not only to better writing, but also sharper and clearer jurisprudence.
Of course, an appellate judge must be prudent in choosing whether to dissent, given the potential costs involved—namely that opposing writings take longer to draft and publish, may reduce collegiality in future cases if the debate turns ugly, and may, some argue, undermine public confidence in the court and the judiciary. See, e.g., Donald, supra at 1129; Epstein et al., Why (and When) Judges Dissent: A Theoretical and Empirical Analysis, 3 J. L. Analysis 101, 104 (2011). In my view, however, dissents are often beneficial, in part because they provide the public with a window through which to view the checks and balances that serve as the foundation of our democracy, and they give a voice to those who hold minority views.
Appellate judges surely have no obligation to concur with a majority opinion with which they materially disagree. To the contrary, we are duty-bound to dissent when we seriously oppose the majority’s ruling in a case. While some may argue that dissents leave the bar and the public feeling uncertain on the state of the law, I would posit that split decisions are critical to protecting public confidence in the judiciary—and, on occasion, to leaving the door open for an injustice to be corrected in a later case. See, e.g., Plessy v. Ferguson, 163 U.S. 537, 552 (1896) (Harlan, J., dissenting), rev’d Brown v. Bd. of Ed. of Topeka, Shawnee Cnty., Kan., 347 U.S. 483 (1954). If Chief Judges and Presiding Justices were to seek to silence dissenting opinions, what would that say about the value of speaking out in a democracy?
Therefore, appellate jurists should feel free to dissent when they genuinely disagree with a majority decision—when no compromise can be reached with their colleagues over the issues at bar—and we must all remain collegial and civil in the process.