Kagan’s Two Types of Dissents

December 14th, 2012

Justice Kagan gave a lecture at the 6th and I synagogue in Washington, D.C. (where I used to attend), and commented on two different types of dissents–which she has “a little bit of practice now.”

There are two types of dissents, Kagan said. The first are cases, like the two she mentioned [one about campaign finance and one about taxpayer dollars going to religious institutions–JB: Arizona Free Enterprise v. Whiting and Arizona Christian School Tuition v. Winn, respectively] and , that are particularly important and which lead a judge to write her dissent hoping that it will be read in the future as a “marker.”

“You want to set down an alternative way of viewing the issue…in the hope that that might affect something in the next case, or the next case or the next case. You would love that some day this decision is going to be reversed and my way will be the law of the land,” Kagan said, though she noted those instances are rare.

These likely turn into perpetual dissents (see here, here, and here). I have proposed, but no one has seconded, my rule against perpetual dissents.

Implicit in Kagan’s comments is that such a “marker” dissent does not accept the precedent as being valid (in conflict with the other type, discussed infra, which she accepts, begrudgingly perhaps). Breyer is more blunt–the majority is simply wrong.

In a recent Sidebar column, Adam Liptak focused on Breyer’s Perpetual Dissent (and cites a GMU Law Review article!)

In 2002, for instance, Justice Stephen G. Breyer acknowledged that the logic of a decision from which he had dissented two years before, Apprendi v. New Jersey, required juries, not judges, to determine the facts supporting some mandatory sentences. But, Justice Breyer wrote, “I cannot yet accept” the earlier decision.

Likewise, Justice Sotomayor has no problem labeling the majority as “wrong.”

“I do think I was right. I think the (majority) were wrong.”

Breyer, like Sotomayor, and Ginsburg never accepted Heller as valid. Kagan has joined Ginsburg, Breyer, Sotomayor, and Stevens, in arguing that Citizens United is not valid, in light of their vote in the Montana case last year.

But for some cases, Kagan dissents, because, well, just sayin.

Other times, though, Kagan said, a judge writes a dissent to explain why she disagrees and out of respect for the litigants and the law, but then she moves on and accepts the majority opinion as the law of the land.

This is a very important discussion. I’m glad the Justices are frank about what they are trying to do with their dissents. I’m still not sure about Kagan’s Medicaid vote in NFIB. Just sayin.

Of course, Justice Harlan’s explanation of dissenting is my favorite.

“Of course I am wrong, because only the Chief Justice, and myself held those views, and as the majority decided the other way, we must believe that we were wrong.”

Kagan, who Larry Tribe noted would have “purchase” on Justice Kennedy–as opposed to Sonia Sotomayor, who would not–prided herself in being able to “move minds”:

Kagan said that, although there are cases where justices “just see the law differently,” there are also those “where you can persuade each other and you can find a greater answer than anyone could see at the beginning. … I love the cases where you can and you do move minds.”

Kagan also commented on the role public opinion does (not) play in judging.

“Well, I don’t think any of us make our decisions by reading polls,” Kagan said. “One’s sense of what to do as a judge is bounded in some way by the society in which one lives” and the political process of getting appointed, she said.

Still, the justice said, “One does think long and hard as a judge — and I’m not sure I’ve ever been in this position –… before you do something that you think is required by law that would be incredibly disruptive to society, and that’s where great wisdom is called for.”

Kagan was also asked about how her faith impacts her role on the Court:

Kagan was also asked about how her religion has affected her on the court, where she is one of three current Jewish justices. (The other six are Catholic).

“It feels very natural; it doesn’t feel like a big deal. And that is an unbelievable thing about this country,” she said.

And as for being a woman on the bench: “We go into the conference room; we close the door. I don’t think that very much turns very often on the gender differences.”

I’ll never forget Kagan’s answer to Senator Graham of how she spent her Christmas day:

 “Like all Jews, I was probably at a Chinese restaurant.”

A very cool lecture. I’m sorry I missed it.