Independent and professional judges are the foundation of a fair, impartial, and constitutionally guaranteed system of courts of law known as the judiciary. This independence does not imply judges can make decisions based on personal preferences but rather that they are free to make lawful decisions--even if those decisions contradict the government or powerful parties involved in a case. (1)
An independent judiciary is at the heart of our democratic society. Without such a judicial system, the government as well as powerful private parties could run rough-shod over weaker and less numerous factions. Within this judicial system, however, it is important that the judges themselves remain independent. Failure to do so can obviate the entire system if one judge, or a small group of judges, can control the entire panel. No single jurist exemplifies this principle more than Judge Robert S. Smith of the New York Court of Appeals. In six years on the bench of New York's highest court--from January 2004 to January 2010--Judge Smith wrote over sixty-five dissenting opinions covering numerous areas of New York law. In fact, in this article alone, eleven areas of law were studied, and each one tells a different story about Judge Smith's jurisprudence.
Dissenting opinions hold a unique place in our legal system. Practically speaking, they mean nothing. They are not the law, they hold no binding precedents, and rarely have any impact. Occasionally, a dissenting opinion will become vindicated by a future majority of the same court when attitudes or societal norms shift, however, this is rare. For the most part, they go unnoticed.
Nevertheless, dissenting opinions can be very useful to the practitioner. Although a judge should go into every case with an open mind, it would be naive to believe that a judge's preferences do not impact his or her decisions. Indeed, a judge's dissenting opinions are the best places to find such preferences. A dissenting opinion can reveal a judge's true beliefs since it is a public statement--that holds no precedential value--expressing what the individual judge believes the correct result to be. Furthermore, unlike a majority opinion, a dissenting judge need not appease his colleagues and therefore, this opinion is a truly accurate reflection of his or her philosophy. According to Professor Bonventre, dissenting opinions expose a judge's genuine jurisprudence. In a recent blog posting he asserted:
[Dissenting opinions] are the disagreements with his
colleagues' rulings where he felt strongly enough that he
chose to go public. Strongly enough that he chose to spend
his time and use his staff and resources to compose a
personal statement to say that his colleagues are wrong.
The personal statement does not change the outcome of a
case. It only serves to make public the author's
disagreements, criticisms, and deeply held beliefs that the
majority of his colleagues have made a mistake. A mistake
that is so big and so bad that he cannot in good conscience be
silent and just go along....
... In short, a dissenting opinion is usually the authoring
Justice's personal tongue-lashing (pen-lashing?) of his
colleagues. And it's one that is so ardently felt that the
Justice feels compelled to go public. (2)
From this personalized statement of a judge's philosophy, a practitioner can learn a great deal, and put this knowledge to use when appearing next before that judge's court. Luckily for New York lawyers, Judge Smith often dissents.
Robert Sherlock Smith was born in New York City in 1944. After receiving his undergraduate education from Stanford University, he attended Columbia Law School, where he was the editor-in-chief of the Law Review; he graduated in 1968. After graduation he went to work for the New York City firm of Paul, Weiss, Rifkind, Wharton & Garrison where he stayed until 2003. …