Academic journal article Review of Constitutional Studies

The Value of Dissent in Constitutional Adjudication: A Context-Specific Analysis

Academic journal article Review of Constitutional Studies

The Value of Dissent in Constitutional Adjudication: A Context-Specific Analysis

Article excerpt

Introduction

In several courts of last resort, such as the Supreme Court of Canada, the United States Supreme Court, and the European Court of Human Rights, judges are permitted to publish a dissenting opinion. (1) However, this practice is not a universal one. In most constitutional courts of continental European nations, the publication of dissenting opinions is forbidden. There has been a long-standing debate within both the academy and the judiciary over which practice is superior. Many have derided dissenting opinions as shaking the public's faith in the courts, compromising the clarity and certainty of the law, and being an inefficient use of resources. Others have emphasized the benefits of published dissents, including their being consistent with constitutional rights to free speech and their contribution to the evolution of law.

This paper does not attempt to provide a broad normative justification for the publication of dissenting opinions. (2) Nor does it answer the all-encompassing question of whether dissent-permitting courts of last resort, including the Supreme Court of Canada and the United States Supreme Court, should abandon the practice of publishing dissents in favour of publishing only unanimous decisions. Instead, this paper provides a critique of the orthodoxy in the existing literature to advocate absolutely either for or against the publication of judicial dissent. In doing so, it seeks to set out a novel way of looking at the relative value of published dissenting opinions. Moreover, for states transitioning from an authoritarian or oppressive regime to constitutional democracy and deciding how to structure their court procedures, it may provide some insights.

I want to make three modest claims. First, a uniform practice across jurisdictions and courts may not necessarily be appropriate because courts of last resort are not identical, but differ in fundamental ways. Second, assessing the value of published dissents in a specific court necessitates a consideration of the unique context within which that court operates. This paper sets out a contextual analysis for undertaking such an assessment and factors in the legal tradition of the jurisdiction, the credibility, function, and procedure of the court, and the background and training of the court's members; just as there is no universal correct practice across jurisdictions, there also may not be one appropriate permanent practice for a jurisdiction or a court since many factors can change over time. Third, applying the proposed contextual analysis to Canada, I claim that, at present, the practice of publishing dissents is a valuable component of constitutional adjudication in the Supreme Court of Canada.

This paper proceeds in three parts. In Part I, I lay the foundation for the international debate by presenting the principal arguments for and against the publication of dissenting opinions. In Part II, I argue against a uniform practice and present the proposed contextual analysis for assessing the value of published dissents in constitutional adjudication. Finally, in Part III, I apply the proposed analysis to the Supreme Court of Canada and demonstrate that, within the unique context of that particular court as it currently exists, the publication of dissenting opinions is a valuable practice.

I. The international debate over the publication of dissenting opinions

The main arguments for publication of dissents

a. The right to dissent

One of the leading arguments in favour of published dissents is that a judge has a "right to dissent." This position has been adopted by jurists across the globe. William Brennan, former Justice of the United States Supreme Court, declared that the right to dissent "is one of the great and cherished freedoms that we enjoy by reason of the excellent accident of our American births." (3) Michael Kirby, former Justice of the High Court of Australia, similarly stated that "[o]ne of the most distinctive features of the common law judicial system is the right of appellate judges to express dissenting opinions. …

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