In some cases a justice will agree with majority/minority but will write their own separate opinion. It seems pretty common. Why is this done? Does the justice want to give his "2 cents? " Or do they just want to go on the record with their own view?
I don’t know any legal aspect, but I think that dissenting opinions often illustrate the strength or weakness of arguments contrary to the majority. I have read a couple of recent decisions which surprised me at how trivial and unimportant the dissenters were (in one case, Scalia and Thomas both in separate opinions).
The point is that they may agree with the decision, but disagree with the reasoning for the decision. There’s a practical aspect to this as well: concurring opinions sometimes become significant legal arguments down the line. It’s not unheard of for a decision to be somewhat awkwardly reached, so that the majority might be compromising on shake grounds for more-or-less political reasons. In those cases especially, a dissenting or concurring opinion can shift the legal profession’s views over time.
Bingo.
Standing on a public sidewalk, the police use an electronic air sniffer to determine that Smith’s house probably has large quantities of marijuana inside. On the strength of these electronic readings, they obtain a search warrant and serve it, and seize large quantities of marijuana. Smith is tried and convicted.
On appeal, he argues that the same reasoning that prevents the police using thermal imaging should apply to his case; the sniffer is a search within the meaning of the Fourth Amendment and the police can’t use it without a warrant. The prosecution argues that the thermal imaging is an intrusion on privacy because it can reveal private, intimate details about the inhabitants of the home unrelated to criminal activities, but the sniffer just says, “Yes-marijuana,” or “No-negative,” and thus is distinguishable. And, says the prosecution, at trial Smith didn’t even raise this specific Fourth Amendment reasoning as a defense, so he can’t bring it up on appeal.
The Supreme Court might vote, 6-3, to uphold Smith’s conviction. But five justices vote to uphold it because they say that while Smith raised the Fourth Amendment defense at trial, the sniffer isn’t a search. The other one says that Smith’s conviction must stand because he waived his Fourth Amendment defense by not bringing it up at trial. So he writes a separate opinion to say, in effect, “I agree with the result: Smith’s convicted…but not the reasoning that a sniffer isn’t a search.”
Clarification? Did you mean to write here: “…although Smith failed to raise the Fourth Amendment defense at trial…”?
As a practical matter, lawyers (who are not involved with the specific case) don’t care so much about the outcome of a case as they do with the legal reasoning applied by the court in reaching that outcome. This is because lower courts in the future will have to apply the legal principles outlined in the appellate/supreme court’s opinion. From a practitioner’s perspective, a judge’s “2 cents” is all that matters because the important part of an opinion is the “why” behind the conclusion.
A concurring opinion does not have binding precedent (otherwise, they would not be concurring but would instead be in the majority opinion), but it can be cited as persuasive authority. Just as importantly, it gives lawyers an insight into the concurring judge’s view of how a particular area of law should (and could, for lawyers strategizing a change in jurisprudence) stand.
I wouldn’t say that lawyers are not concerned with the outcome of a case. The reasoning is important, but for one side the facts are just as important because they’ll spend the next X number of years distinguishing their own cases from the new precedent.
I think in his hypothetical the prosecution/appellee is contending that the 4A defense was waived because it was not raised with sufficient specificity to preserve it for appeal.
OK. Hypothetical:
9 Justices on the Supreme Court. An appeal of a civil case comes before them.
4 Justices vote the trial court made no errors and that the judgement should stand.
3 Justices vote that the trial court’s only error was a misreading of a statute and that the case should be remanded for reconsideration.
2 Justices vote that the trial court’s only error was a misapplication of precedent and that the case should be remanded for reconsideration.
Questions: Is the case remanded? What is the trial court supposed to do?
A majority of the Justices believe that the trial court did not misread the statute. And a majority think the court did not misapply precedent. But yet a majority think the court erred and should reconsider the judgement.
Obviously, the case will be remanded. The lower court will basically have to tease out a rule of law from the majority opinion based on which justices concurred in which parts, and hope that the circuit court that hears any subsequent appeal (or SCOTUS, if applicable) agrees. This law review article explains more than you’d probably ever want to know about the process.
Yes, remanded. A majority of SCOTUS has held that it goes back to the trial judge, so off it goes.
As for what the poor trial judge does, well that’s why they get the big bucks and robes.
This is an example which drives the maxim that hard cases make bad law.
The trial judge has to find a narrow and winding path that satisfies the objections of both groups of justices.
Or at least satisfies them enough that he/she won’t look too silly if the case goes back to the Supremes again. The good news is that’s pretty unlikely.
Plurality opinions, like those outlined in AD’s hypothetical, do occur occasionally. Essentially, you have a majority of justices agreeing on the outcome, it disagreeing on the reasoning. In these situations, the lower court judge hearing the remand would (as NP noted) have to tease out the pertinent legal principle from the plurality opinion. Generally, the lower court would look at the areas where the justices agreed, and try to stitch together a holding from the opinion.
Justice Oliver Wendell Holmes, Jr. and Justice Benjamin Cardozo have been known for their reputation as dissenters in the Supreme Court.
But there is an example of a State Supreme Court justice who showed the value of dissenting opinions.
This was Justice Michael Musmanno of the Pennsylvania Supreme Court, in the 50s. He even wrote a book–he was quite the author–titled Justice Musmanno Dissents.
He even presided over the Nuremburg War Crimes Trials in the wake of World War II.
Chief Justice Horace Stern made disparaging remarks “I don’t read them!” (and “I am not interested in current fiction”) when asked if he read Musmanno’s dissenting opinions. This came back, figuratively, to bite Stern and his colleagues, in a case the court heard for this reason: The dissenting opinion that Musmanno wrote was, almost word-for-word, identical to the prevailing opinion issued by the court three months later in another case! *Perpetua v. Philadelphia Transportation Company, *380 Pa. 561; Koehler v. Schwartz, 382 Pa. 352.
I’ve always thought it was “good cases make bad law.”
How much of that is from tradition when in the early court every justice wrote an opinion?
No. If Smith failed to raise it at trial, it’s generally considered waived and he can’t raise it on appeal.
Not much. That tradition ended with John Marshall.
An appellate court is not a committee where the majority can bind the others. It’s a collection of independent judges, each of whom has to make up her/his mind about the case. Even if there is a majority of the court going a particular way, the other judges each have to decide whether to support that majority, in whole or in part.
absolutely fascinating.
How many of y’all work in the legal field?
Tangential Question, do civil cases ever go to a Supreme Court and if so how often compared to criminal cases?(in the US)
Civil cases frequently go to the Supreme Court. I couldn’t guess on the ratio, but I wouldn’t be surprised if more than half are civil.