"Jones — Cogitations on Appellate Decision-Making"
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At the outset let me distinguish sharply between the internally circulated writing expressing disagreement with the views of another member or members of the Court and the external, published dissenting opinion. The two serve different, although sometimes overlapping functions. Careful, powerful writings advancing differing analysis and reasoning, or invoking new or contrary authorities, or both, circulated among the members of the Court while the case is under consideration can have significant impact on the eventual disposition.^[3] Any member of a collegial appellate court can recall instances in which foment has been stirred up and the outcome has been changed or substantially affected by such writings. The function, and thus the appropriateness of the internal dissent, depends on the nature and dynamics of the court's own deliberative procedures. In our Court at least an internally circulated dissent serves the purposes sometimes ascribed to the published dissent, e.g., of giving assurance that the case has been fully considered and is not the product of a single member of the court,^[4] or of improving the craftsmanship of the majority opinion.^[5]

With respect to external dissents, three practical factors deserve identification in consideration of what I think is the responsibility not to dissent from the published opinion of the Court. First, as Chief Judge Breitel occasionally observed, a dissenting writing exposes beyond peradventure that its author has been unable to persuade the members of the majority of the correctness or wisdom of his articulated analysis and rationale. Second, a dissent may often serve to harden or even to extend the position of the majority, to drive it in beyond any probable future redemption.

Third, but looking in the opposite direction, in some circumstances one may be denied the opportunity not to dissent; he may be obliged to expose his disagreement with the majority. Thus, while it is often the part of responsibility silently to acquiesce in the majority position and to refrain from dissenting for some of the reasons I shall presently discuss, that alternative is lost if another member of the court concludes that there must be a dissenting opinion. Then intellectual honesty demands that one choose between two writings; silence would permit the inference not only that one may be willing to go along with the majority but in addition that he rejects the views expressed in the dissent. Any advantage perceived to attach to no dissent is no longer available, and any disadvantage feared to attend the publication of a dissent is inescapable. In such a circumstance acceptance of his proper share of responsibility for court writings may dictate that the disagreeing judge, who would otherwise be disposed to hold his silence, write the dissenting opinion.

Turning then to substantive considerations (and absent the publication of a dissenting opinion at the instance of another member of the court), it is my view that the decision as to when to dissent should be made in the perspective of what is seen to be in the best interests of the court and the law. Here, as I have suggested above, the personal interests of the individual judge should yield to the interests of the court. "Judicial custom once permitted each judge on a multi-judge court to deliver his individual opinion in each case. Then Chief Justice Marshall undertook to achieve a sort of collegial unity by having a single opinion rendered as that of his entire court. Marshall's approach fostered an appearance of certainty in the law."^[6] It is increasingly desirable, if it may properly be done, for the opinions of a court of last resort to be perceived as the expression of an institutional position rather than as reflecting a collection of individual points of view.

When the Canons of Judicial Ethics were adopted by American Bar Association in 1924, Canon 19, entitled "Judicial Opinions," provided in part:

It is of high importance that judges constituting a court of last resort should use effort and self-restraint to promote solidarity of conclusions and the consequent influence of judicial decision. A judge should not yield to pride of opinion or value more highly his individual reputation than that of the court to which he should be loyal. Except in case of conscientious difference of opinion on fundamental principle dissenting opinions should be discouraged in courts of last resort.

This provision was not carried forward into the Code of Judicial Conduct in 1972. The subject of judicial opinions is nowhere addressed in the present Code. This may reflect a conclusion that the subject, although a matter for serious judicial deliberation, is not one to be resolved by reference to ethical considerations.

Be that as it may, the determination of whether to dissent in the particular case should be made with principal awareness of its impact on the court. Again, considerations of personal interest should be identified and consciously subordinated.

At the extremes, the issue is relatively clear.^[7] Perhaps the kind of case in which it appears nearly impossible to justify a published dissent is that involving a determination with respect to the procedures or rules of practice of the appellate court on which the disagreeing judge sits. When the majority announces such a procedural decision, that really should be the end of it. Certainty and predictability are highly desirable for the attorneys practicing before the court as well as for lower courts. To the extent that published dissents sow seeds of uncertainty this objective is frustrated. Beyond that, inasmuch as it is the court itself which may revise its own rules, internally expressed supplications, fortified by wisdom born of experience, are at least as effective, and entail none of the disadvantages of public disclosure. That I see so unerringly where truth lies in this category may be attributed to at least one egregious transgression of the rule on my own part. Whatever may be other attributes of sin, it often has a way of clarifying the sinner's perception of virtue! Mea culpa!^[8]

I would normally not think it responsible, either, to publish a difference of opinion over what is essentially the application of undisputed legal principles to a factual situation which the members of the Court may view differently. Similarly I would withhold dissent over the interpretation or construction of ad hoc writings-an individually drafted will, a particular contract. Decisions in such cases have little precedential value and a published dissent would serve little useful purpose. I am likewise hesitant to dissent in matters of statutory construction or interpretation, here because the question lies in the legislative province and, if the majority is indeed in error as to what was intended, procedures for correction by way of legislative amendment are available.

At the other extreme, if the case before our court presents questions of federal constitutional dimension which have a chance of reaching the Supreme Court of the United States a dissent then may serve a useful purpose as revealing more fully the analysis differing views in our Court-a more particularized ventilation of the deliberations which preceded our disposition and on which it was predicated.

There are instances, too, although perhaps not many in number, in which responsibility to one's own sense of integrity compels that customary guidelines be ignored and that a dissent be filed-on matters of high principle or instances of deep, irresistible visceral compulsion, where the blood rushes to the back of one's neck, as Holmes phrased it. But here, too, care must be taken not to go too far and in general to indulge sparingly-for to do otherwise risks dissipation of effectiveness. It can be therapeutic, and instructive, as I have found, to write a dissent-incisive, cutting, devastating, without restraint-and then to destroy it before publication.

In those cases which do not fall within the reach of the rubrics that apply at either end of the spectrum, my disposition is to refrain from publishing a dissent. Others will differ with me.

At least two writers have suggested that cases involving articulated reliance on the doctrine of stare decisis raise special considerations for the public dissenter.^[9] I am not certain that I agree. The nature of the substantive issues under consideration will probably be more determinative, although the force of stare decisis may add a special component to be weighed. Analytically, I suppose, there might be a differentiation between the dissenter whose writing deplores the majority's departure from what he perceives as controlling precedent, on the one hand, and, on the other, the dissenter who writes to urge that the bonds of precedent be burst asunder. It would seem that a dissent that seeks to point to the majority's disregard for stare decisis serves chiefly as a safety valve to avoid the writer's own explosion, although the vehemence of his argument may also be expressed internally. The point of law will in fact be changed in consequence of the majority position, and the force of the doctrine dissipated in the particular instance. Moreover, respect for stare decisis will oblige the dissenter to move over to the majority view on the next occasion the issue is presented. His own fidelity will lead him to the position exemplified by Mr. Justice Holmes. Having authored a dissent on behalf of four members of the Court in one case, two years later writing for a unanimous court in the second case, he opened his opinion with the statement that the issue had been settled in the first case.^[10]

The dissenter who urges departure from precedent is in a stronger position; his is truly an appeal to a revised and wiser view of the law. His dissent may further serve incidentally to underscore the institutional sense of stability and continuity being demonstrated by the majority.

Chief Justice Hughes extended a majestic invitation. "A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed."^[11] Chief Judge Traynor similarly has observed that a well-reasoned dissent is "aimed at winning the day in the future."^[12] But as Chief Judge Fuld, one whose powerful dissents have later carried the day,^[13] has observed, dissents do not usually do well as leading to changing the law. Less than one-tenth of Mr. Justice Holmes' dissents eventually attained recognition in subsequently declared law.^[14]

A fair estimate of his own jurisprudential prescience or of his individual powers of persuasion seldom encourages the busy appellate judge to jump into the fray in the expectation of planting the seed for a later departure from the majority position. This natural reticence is fed too, by a realistic awareness that if the position the dissenter would espouse is so very sound or wise, this fact will be recognized in due course, whatever the would-be dissenter may choose to do or to refrain from doing. It does not diminish the standing of the great dissents of judicial history to suggest that it has been the inherent merit of the position expressed by the dissenter which eventually carried the day; the significant contribution of the dissenter was effectively to invite attention to that merit.

The proposition has been advanced that an absence of dissents from a court of last resort risks impairment of public confidence in the character and independence of the judges. This might follow if there were never any dissenting opinions. Even if that were a consummation devoutly to be wished, however, no pragmatist would ever anticipate its realization. I am hesitant, however, to accept the suggestion that dissents may serve "to give assurance that a case has received careful attention."^[15] An appearance, yes; in assurance, more questionable. Certainly the reverse cannot be accepted-that from their absence an inference is available that a case was not carefully considered! One of the basic functions of a majority opinion is to demonstrate that the cases has been thoroughly considered, to identify contentions of substance which have been rejected and to expose the reasoning which has led to the conclusion reached. In our Court we recognize the limited right of one who will be in dissent constructively to criticize the majority writing before publication. Several instances come to my mind (which I may not fittingly identify here) in which the Court's opinion has been clarified and strengthened in consequence of the participation and suggestion of a judge who has nonetheless remained in dissent.

It has also been suggested that the publication of dissents facilitates prophesy as to how the same court will decide a subsequent case.^[17] That dissents invite speculation and even nourish what may prove to be false hopes in the hearts of particularly situated litigants cannot be denied. I am not persuaded, however, that this predictive possibility is either sufficiently reliable or worthy, standing alone, to justify publishing more than a very occasional dissent in a particular situation.

The wide publication of dissenting opinions does serve one worthwhile purpose. The readers of such opinions will thereby be afforded a dependable basis on which to evaluate the competence and caliber of the sitting judge. This will be particularly useful if at the end of his present term the question arises as to the wisdom of his reappointment or reelection.^[18] For this purpose dissenting opinions will likely be more revealing than majority opinions written by the same judge, for in composing the latter the author will often properly have made accommodations to the views of other members of the majority.

Similarly the publication of dissenting and concurring opinions will afford practitioners and the public generally trustworthy source materials on which to appraise the quality and stature of the entire court-for better or for worse as the membership of the court may warrant.

One writer has identified a collateral advantage which may attend the publication of dissenting opinions-revealed in the undisguised enthusiasm with which they are greeted by law school professors.^[19] They are said to provide a special grist for law school discussion and instruction. Even assuming this to be true, the argument is less than imperative.

Although categorical rules as to when to dissent cannot and should not be prescribed, when the decision to write a dissent has been made, one standard is immutable. A dissent may challenge the reasoning of other members of the court;^[20] no opinion, however, can be permitted to assault the person or integrity of another judge. Ad rem or ad causam, yes; ad hominem, never.

Let me make it abundantly clear-by what I have said I do not suggest that one who differs with the majority does not have the right to file a dissent.^[21] Quite the contrary, this is a very nearly absolute right which inheres in the office and derives from the election or appointment of the individual as a member of the court.^[22] I have addressed, rather, the criteria which I have come to think pertinent to deciding when the right of dissent is responsibly to be exercised. The ever present risk is that, even if a dissent is not intended to advance personal visibility rather than public good, it may be so perceived, in which event there is risk of injury to the court. Nothing in my own experience would lead me to subscribe to the observation made by Mr. Justice Douglas that "the right to dissent is the only thing that makes life tolerable for a judge of an appellate court."^[23]

A not dissimilar quandary is posed as to when to file a concurring opinion. Here, too, judicial wisdom and responsibility place the focus on the best interests of the court and the law. There is, however, an alternative to a separate writing not available to the dissenter: the would-be concurrer is often able to persuade the author of the court's opinion to incorporate what was to have been the substance of the concurrence. Even if the author does not personally subscribe to the addition, felicitous diction and phrasing can often accommodate both points of view with fairness and without compromise of either and without derangement of the majority writing. In confronting the possible desirability of a separate concurring opinion, sensitive care must be taken to assure that the desire to file such a writing does not spring from a pride of analysis or expression, however warranted such pride may be. Here there is great opportunity for exercise of the privilege of diplomatic suggestion, accompanied by an unhesitating recognition of the prerogatives which must accompany assignment of responsibility for writing the court's opinion.

If, however, the theory of proposed concurrence is inconsistent or incongruent with that of the majority writing, accommodation in drafting then becomes impossible. In that situation the same criteria and considerations as apply to dissents should be invoked.

So much for published dissents and concurrences. As must be evident, my own relish is for vigorous participation in the deliberations of the court while the case is still under consideration.

Nonetheless, having said all these things, I must confess that I am heartened by the anticipation that whatever discouragement I or others may offer to the publication of dissenting and concurring opinions will have little effect. My head tells me that the standards I have described, if not correct in all details, at least point sound direction. My heart reminds me that a court remains essentially a human institution. The vitality of its dynamic, even vibrant existence should not, and happily never will be, stultified by the mechanical application of any rational justification system. I would view with real dismay and distress the emergence of a totally disciplined court from which there poured forth nothing but unanimous opinions. I am persuaded, however, that this is a risk which merits no anxiety!

Because of the very healthy respect I have for the distribution of powers in our governmental polity I am led to insert an observation or two concerning comment in judicial opinions on the desirability of statutory amendment. Because the courts are often in a peculiar position to measure the effect of legislative enactments in operation, albeit in individual instances, they have some responsibility to identify areas in which difficulties or inadequacies are of such substance as to warrant, or perhaps even cry out for, statutory amendment. When such a situation is detected our Court has often recognized that there immediately is imposed on its members an obligation to resist the temptation not only to identify the problem but as well to intimate, suggest or recommend the substantive solution. This is precisely what the court should refrain from doing, whatever may be the competence, wisdom or conviction of its members.

To this general rule there is one obvious exception. If the particular statutory trouble involves access to the judicial process or addresses that process itself, the conduct of litigation or the conduct of court business, then the courts have a responsibility to speak out. Whether, however, a judicial opinion is the proper vehicle even for such communication is a matter to be determined case by case, having respect for the function of the judicial opinion in an individual case and judging the effectiveness of this means of expression. In any event the court is not confronted with the bar to addressing the merits of possible amendments which must be observed in other areas of legislative responsibility.

Permit me to conclude with a few personal observations. Happily, I have been conscious of relatively little difficulty or discomfort in making the transition from advocate to arbiter.^[24] I did encounter real difficulty in teaming the work of the Court of Appeals, but time and application, and particularly the guidance, assistance and patience of the other members of the Court and staff have been helpful. It may not surprise you when I report that I have never worked harder or been so deeply satisfied and excited in what I am doing. I have teamed the great advantage of collegial deliberation and the stimulation of sharing in it. I shall continue to work diligently, with humility, enthusiasm and gratitude.

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