Hastings Law Journal

Volume 4 | Issue 2 Article 5

1-1953

Dissenting Opinions
Jesse W. Carter

Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal

Part of the Law Commons

Recommended Citation
Jesse W. Carter, Dissenting Opinions, 4 Hastings L.J. 118 (1953).
Available at: https://repository.uchastings.edu/hastings_law_journal/vol4/iss2/5

This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in
Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository.
 DISSENTING OPINIONS
By JUSTICE JESSE W. CARTER
Of the Supreme Court of California

The right to dissent is the essence of democracy-the will to dissent is

an effective safeguard against judicial lethargy-the effect of a dissent is
the essence of progress.
I have often heard that dissenting opinions reflect unfavorably upon
a court, especially where the views of the majority are vigorously attacked.
I agree that this may be true if the attack is justified. If it is not justified
and the views of the majority are sound, the reflection is on the dissenter.
I welcome dissents. They test the soundness of my own opinions. If I am
right, the dissent makes the soundness of my position even clearer. If I am
wrong, the dissent should point the way for the correction of the error by
this or some future court. A supreme court decision which cannot stand the
test of a vigorous dissent should never stand as a decision of the court.
I am firmly of the opinion that dissenting opinions are the prescription
needed to keep any court healthy. So long as a court has one or two judges
with deep convictions and strong feelings and who are not afraid to express
themselves in accordance therewith, the other members of that particular
court will not, through inertia, short-sightedness or lack of study, be per-
mitted to relax into a state of mind equivalent to the old, and spurious, idea
that "what was good enough for our grandfathers is good enough for us."
So long as there is a dissenter on any court, the other justices will examine
carefully their own views on any particular subject. If a dissenting opinion
points out the errors in the majority opinion, the attorney on the losing side
is given encouragement to petition for a rehearing, a review by a higher
court, and in some instances, to petition for certiorari in the United States
Supreme Court.
If a judge, who does not agree with the majority opinion, remains silent,
he is, to my mind, shirking his duty not only to himself, but to the attorneys
and the general public. He is shirking his duty to himself in that he will not
stand and fight for what he believes in; he is shirking his duty to the attorney
for the losing side in that he is not aiding him in his endeavor to do his best
for his client; he is shirking his duty to the general public which, in most
instances, is responsible for his appointment to the bench and his continued
position there. I feel that the public has a right to know what my views and
beliefs are in the various fields of the law, and that it is my duty to see that
those views and beliefs are a matter of public record through published
dissenting opinions.
Judicial history shows that the dissenting opinion has exercised a cor-
rective and reforming influence upon the law. The majority opinion is, in
(118)
 DISSENTING OPINIONS 119

form and substance, the collective, composed and edited view of the majority.
In a dissenting opinion, however, the judge is on his own, and can express
his personality, his philosophy and his uncensored convictions. Dissenting
opinions are powerful weapons against error; they frequently explain the
majority opinion. When there is a dissenting opinion, the attorney for the
losing side can be assured that the case has received a thorough airing in
the conference room and that the majority opinion is not a one-man decision
blindly concurred in by the other justices. Judges are human beings and
donning the judicial robe does not evaporate their human feelings. The
conference room is not a prayer meeting where everyone is expected to nod
"Amen"; it is more like a battleground where opposing philosophies meet
in hand-to-hand combat. Every single member of the general public and
every member of the bar should want a "fighting judge" who will do his best
to see that justice is done. There are two sides to almost every question;
an attorney can not always be on the winning side nor can any single member
of the general public rely on always being on the side of the majority.
The law is not an exact science, and a group composed of three, five,
seven or nine men with different backgrounds, beliefs, social, economic and
political philosophies can not be expected to think alike. That they should
think alike is not a sound objective to be attained. The great merit of the
common law has been the balance between the two opposite needs of the
legal system: stability in the law, and evolution of legal principles to conform
to changing economic and social conditions. If all men thought alike and if
all men were afraid of change, there would be no progress and no endeavor.
The law can not, and must not, stand still while the rest of the world moves on.
One of the important roles played by the dissenting opinion in the
development of American jurisprudence is its effect on legislation. For
example, the dissent of Mr. Justice Iredell in Chisholm v. Georgia' became
part of the supreme law of the land in the Eleventh Amendment' to the
Federal Constitution. One of my own dissents was instrumental in securing
an amendment to a section of the civil code having to do with the community
or separate character of a recovery of damages for personal injuries received
by a married woman. 3 I have been led to believe that my dissenting opinions
with respect to the use of illegally obtained evidence in California courts
may be given favorable attention by the Legislature of California so that the
California rule may be brought into line with that which prevails in the
federal courts. My dissenting opinion on the denial of a hearing by the

'2 U.S. 419 (1793).

"'The judicial power of the United States shall not be construed to extend to any suit in law
or equity, commenced or prosecuted against one of the United States by citizens of another State,
or by citizens or subjects of any foreign State."
'Zaragosa v. Craven, 33 Cal.2d 315, 202 P.2d 73 (1949).
120 THE HASTINGS LAW JOURNAL

Supreme Court of California in Mathews v. The City of Albany4 resulted

in a change in the Rules on Appeal so as to permit the Supreme Court to
look into the facts when the petitioner claimed that the District Court of
Appeal had misstated them in a material respect.
On the other hand, the dissenting opinion plays a protective role insofar
as injudicious legislation is concerned in pointing out wherein such legislation
is unconstitutional. To prevent laws enacted by the Legislature from making
too great inroads into the rights of the individual guaranteed by the Consti-
tution is the plain but often neglected duty of the courts. In cases involving
civil liberties many of the dissents of Holmes and Brandeis are now accepted
as sound law. The dissenting opinion also serves as a brake on reactionary
tendencies of some judges to hold unconstitutional legislation enacted for
the betterment of the public health, morals and welfare. There are numerous
examples of laws passed for the public good which have necessarily
encroached, to some extent, upon private rights. Many laws enacted for
the protection and betterment of men and women employed in the nation's
industries have been involved in cases where the dissent later became the
law. A well-known example of a dissent of this character involved the mini-
mum wage law which provided for decent working hours and wages for
women and children. The first case (in which a clear-cut decision was
reached) to come to the attention of the Supreme Court of the United States
was Adkins v. Children's Hospital,5 where the court was divided 5 to 3
(one Justice being disqualified) in holding that there was no connection
between hours worked and wages paid to women and children and the public
health, morals or welfare such as would justify destroying by law the freedom
of contract of the employers and the women who worked for them. In that
case, Chief Justice Taft and Mr. Justice Holmes wrote dissenting opinions.
Mr. Justice Holmes pointed out that freedom of contract had been read into
the Fourteenth Amendment under the word "liberty," and that Congress had
the power to pass restrictive laws which interfered with freedom of contract
to the end that conditions leading to ill health, immorality and the deteriora-
tion of the race might be obviated. In West Coast Hotel Company v. Parrish 6
the majority of the court overruled the Adkins case and held in a 5-4
decision in line with the dissent of Mr. Justice Holmes that the liberty pro-
tected by the Constitution was not an absolute right but a right, or liberty,
qualified by what was best for the health, safety, morals and welfare of the
people. In other words, laws passed for the protection of the public at large,
or a portion thereof, were not necessarily unconstitutional as a deprivation
of liberty (freedom of contract) without due process of law. In Takahashiv.
'36 CaLApp.2d 147, 98 P.2d 1025 (1940).
5261 U.S. 525 (1923).
0300 U.S. 379 (1937).
 DISSENTING OPINIONS 121

Fish and Game Commission7 it was held by the majority of the Supreme Court
of California that this state could constitutionally, by statute, exclude aliens
who were residents of this state from fishing in its coastal waters. I dissented.
The case was taken to the Supreme Court of the United States and there
reversed in line with my dissent. An excellent example of a dissenting
opinion which later became the law is found in the case of Minersville School
Dist. v. Gobitis,s where the United States Supreme Court held, Mr. Justice
Stone dissenting, that a statute requiring a compulsory flag salute by school
children did not unconstitutionally restrict freedom of religion. This case
was overruled four years later by West Virginia Board of Education v.
Barnette,' which followed the reasoning of Mr. Justice Stone's dissent in the
Minersville case. There are many other examples which might be set forth
here. I am desirous only of calling your attention to the roles which have
been played, and will always be played, by the dissenting opinion.
Another role played by the dissenting opinion is that it is a forecast of
things to come. The writers of dissents are usually men who look forward-
not back, nor to the immediate present-but to the future.
In an article written by Mr. Justice William 0. Douglas, Associate
Justice of the Supreme Court of the United States, he said:10
"Holmes, perhaps better than anyone either before or after him, pointed
out how illusory was the lawyer's search for certainty. Law is not what has
been or is-law in the lawyer's sense is the prediction of things to come,
the prediction of what decree will be written by designated judges on specified
facts. In layman's language law is the prediction of what will happen to you
if you do certain things. This was the lesson Holmes taught; and every
lawyer knows that it is sound. . . .Uncertainty is increased when new and
difficult problems under ambiguous statutes arise. And when constitutional
questions emerge, the case is, as we lawyers say, 'at large.' For the federal
constitution, like most state constitutions, is not a code but a rule of action-
a statement of philosophy and point of view, a summation of general prin-
ciples, a delineation of the broad outlines of a regime which the Fathers.
designed for us.
"These are the things that Holmes summed up when he described the
lawyer's continuing and uncertain search for certainty. They indeed suggest
why philosophers of the democratic faith will rejoice in the uncertainty of
the law and find strength and glory in it.
"Certainty and unanimity in the law are possible both under the fascist
and communist systems. They are not only possible; they are indispensable;
for a complete subservience to the political regime is a sine qua non to
judicial survival under either system. One cannot imagine the courts of
Hitler engaged in a public debate over the principles of Der Fuehrer, with
a minority of one or four deploring or denouncing the principles themselves.
'30 Cal.2d 719, 185 P.2d 805 (1947).
8310 U.S.586 (1940).
9319 U.S. 624 (1943).
1032 J.A. JuD. Socy., 104, 107.
122 THE HASTINGS LAW JOURNAL

One cannot imagine a judge of a Communist court dissenting against the

decrees of the Kremlin.
"Disagreement among judges is as true to the character of democracy
as freedom of speech itself. The dissenting opinion is as genuinely American
as Otis' denunciation of the general warrants, as Thomas Paine's, Thomas
Jefferson's, or James Madison's briefs for civil liberties ...
"The law is not a series of calculating machines where definitions and
answers come tumbling out when the right levers are pushed. A judge's
reaction to vague statutory language is bound to be like his reactions to the
generalities of constitutional clauses. The language that he construes gathers
meaning and overtones, significance and relevancy in terms of his own life
and experience, his personal set of values, his training and education, and
the genes of the blood stream of his ancestors. It would be as futile to argue
that judges are not human, as it would to prove that politics and legislatures
can be divorced.
"When we move to constitutional questions, uncertainty necessarily
increases. A judge who is asked to construe or interpret the Constitution
often rejects the gloss which his predecessors have put on it. For the gloss
may, in his view, offend the spirit of the Constitution, or do violence to it.
That has been the experience of this generation and of all those that have
preceded. It will likewise be the experience of those which follow. And so
it should be. For it is the Constitution which we have sworn to defend, not
some predecessor's interpretation of it. . . .The constitution was written for
all time and all ages. It would lose its great character and become feeble, if
it were allowed to become encrusted with narrow, legalistic notions that
dominated the thinking of one generation."
There will always be uncertainty in the law-it is necessary for democ-
racy. The law is a substitute for force and violence and is the only path
to peace that man has yet devised. The law is an attempt to reconcile the
divergent rights of individuals and groups. When judges can not agree, it
is a sign that they are dealing with problems on which society itself can not
agree. Judges should be honored, rather than criticized, for proclaiming
their honest views.
Chief Justice Hughes ably defended the merits of the dissenting opinion
when he wrote that:
"There are some who think it desirable that dissents should not be
disclosed as they detract from the force of the judgment. Undoubtedly they
do. When unanimity can be obtained without sacrifice of conviction, it
strongly commends the decision to public confidence. But unanimity which
is merely formal, which is recorded at the expense of strong, conflicting
views, is not desirable in a court of last resort, whatever may be the effect
upon public opinion at the time. This is so because what must ultimately
sustain the court in public confidence is the character and independence of
the judges. . . .The judge that quavers or retreats before an impending
crisis of the day and finds haven in dialectics or weasel words or surrenders
his own conviction for a passing expediency is likewise not born for the
woolsack. . . .If they are true to their responsibilities and traditions, they
will not hesitate to speak frankly and plainly on the great issues coming
 DISSENTING OPINIONS 123

before them. They will prove their worth by showing their independence
and fortitude. Their dissents or concurring opinions may salvage for tomor-
row the principle that was sacrificed or forgotten today. . . In these critical
days leaders in every walk of life must dare choose publicly and with pride,
our constitutional scheme of things in all its applications. They must dare
choose it above all lesser things and reject the easy invitation of expediency
or complacency. When the leaders make that choice, men of lesser stature
and affairs will dare stake their all for freedom."
To my mind it is of far greater importance that a man raise his voice
in defense of the right as he sees it than that a court should be subjected to
ridicule because that man has seen fit to speak with the courage of his con-
victions. Freedom of speech is one of the greatest rights guaranteed to the
individual by the Bill of Rights and is an essential ingredient of any
democracy. It applies no less to the dissenting judge than it does to the
average citizen. An extensive survey of the roles played by the dissenting
opinion would lead inevitably to the conclusion that freedom of the minority
to give expression to social, economic and political philosophies that differed
from those subscribed to by the majority of any court has promoted democ-
racy to a much greater degree than has the prestige of the court been threat-
ened or harmed by ridicule because of the conflict of views expressed by
members of the court. Be that as it may, since courts are an indispensable
part of the democratic process, the same right to freedom of expression
should be accorded judges as is accorded legislators or the executive in their
respective fields-if differences of opinion exist as to what the law is, those
differences should be stated, as history has shown that the view expressed
by the minority often becomes the view of the majority. As Archibald Mac-
Leish wrote:

"What's changed is freedom in this age-

What great men dared to choose
Small men now dare neither win nor lose."