I planned on writing an article about how Justices sign their dissents. Harvard Law Review beat me to it. They probably did a better job than I could, so it’s cool. Take a look at this note, titled From Consensus to Collegiality: The Origins of the “Respectful” Dissent. Here is the introduction:
There is a discrete statement — a speech act1 — found in nearly allSupreme Court dissents in which the protesting Justice formally registershis disagreement with the majority.2 In its modern, canonicalform, it includes the phrase, “I respectfully dissent” or some variationthereof,3 found at the beginning or end of the opinion. Approximatelyseventy percent of all principal dissenting opinions handed down byJustices of the Roberts Court employ this decidedly personal rhetoric.4But this was not always the case. For the first century of the Court’shistory, a typical dissenting speech act read as a long, prolix apologeticjustifying the dissent’s deviation from the majority opinion. At theturn of the twentieth century, however, Justices instead dissented withbrief, pro forma statements. By the 1940s the speech act had devolvedaltogether into a dispassionate procedural order. It was not until theWarren Court that the modern “respectful” dissent first appeared.
This dynamic history suggests that the development of languageand rhetoric in judicial dissents is not arbitrary. Rather, there exists ademonstrable nexus between institutional practice — here, the speechact — and institutional purpose, which includes the Court’s politicaland jurisprudential ends. Recast as such, the historical narrative unfoldsin four periods, representing a shift from “consensus” to “collegiality”as the Court’s guiding institutional purpose.
In the first period, the Court strictly enforced Chief Justice Marshall’sconsensus norm in an attempt to consolidate political power.As reflected in the overtly apologetic rhetoric of the rare dissenter, thisnorm shunned separate opinions. Although the norm persisted intothe twentieth century, it was obvious by 1905, the year of Lochner v.New York,5 that it had weakened substantially. After a century ofsteady but infrequent dissenting, Justices had normalized the decisionto write separately. They could thus dissent in the second period withcursory, pro forma speech acts that lacked overtly apologetic rhetoric.
In the third period, watershed developments of the 1930s and 1940sradically transformed the Court. The frequency of dissenting opinionsquickly reached unprecedented heights, obliterating what remained ofthe consensus norm. Guided neither by consensus nor collegiality inthis transitional moment, the Court defaulted to procedural, outcomeorientedspeech. It was only under Chief Justice Warren, whose tenuremarked the beginning of the fourth period, that the Court struck itscurrent balance. Recognizing that an activist Court produced substantialinstitutional costs, the Justices came to embrace a norm of collegiality.This institutional practice manifested in the respectful dissent,which subsequent Justices adopted and entrenched. So dominant isthis speech act on the Roberts Court that to appreciate its value, onemust consider the rare situation in which the dissenting Justice consciouslychooses to forego this respectful rhetoric.
I respectfully concur.