Dissenting Opinions

Many legal systems have courts with multiple judges. Generally, procedural rules mandate that the decision of the majority of judges shall be the law. However, what differs among various courts is how and whether the opinions of dissenting judges are publicized.

For instance, the traditional practice in English common law courts was the delivery of opinions “seriatim”––meaning that each judge would separately state his opinion (usually orally). Although early American tribunals followed in the footsteps of the English courts, John Marshall, one of the early chief justices of the U.S. Supreme Court, instituted a new practice. Marshall convinced the other members of the court to reach a compromise in a private conference, and then issue an anonymous opinion, without recording the independent views of the justices. Unanimity remained fairly prevalent in the Supreme Court’s opinions until Harlan Fiske Stone became the chief justice in 1941. Since then the justices of the Supreme Court have more often asserted their individual opinions, whether they dissent or concur with the majority.

Advocates of the the issuing of opinions seriatim and unanimous opinions have debated the policies underlying each practice. One point of contention between the Republicans and Federalists in the years following the ratification of the Constitution was the role of the judiciary in the American federal government. Thomas Jefferson, as one of the leading Republicans, argued against strong judicial power, which, in his view, threatened democracy. Consequently, he praised the seriatim system for several reasons, including: it promotes transparency and accountability; it encourages judges to be actively involved in the process (as opposed to lazy and aloof); and it enables future courts to overrule precedent based on the reasoning of dissenting predecessors. Chief Justice Marshall, on the other hand, true to his Federalist beliefs, instituted the unanimous system because it increases the legitimacy, the prestige, and ultimately, the power of the Court.

(The above information is summarized from M. Todd Henderson, From Seriatim to Consensus and Back Again: A Theory of Dissent, 2007 Sup. Ct. Rev. 283 (2007), SSRN version available here. See also Hon. Ruth Bader Ginsburg, The Role of Dissenting Opinions, 95 Minn. L. Rev. 1 (2010))

To my knowledge, there is not much discussion in the Talmud about dissent within the 71-member Sanhedrin HaGedolah (Great Sanhedrin). Though there are recorded disputes between the members of the Jewish nation’s highest court (see, e.g., Chagigah 16a-16b), I have not found any mention of the manner of publication of that court’s decisions.

Nevertheless, the issue of publication of dissenting opinions does arise in the context of a beis din that conducts civil trials. Generally, a beis din adjudicating a civil matter is comprised of three judges, who may rule in accordance with the opinion of the majority. See Sanhedrin 2a, 29a. However, when the court publicizes its decision it must ensure that the litigants are unaware of which judges voted for each litigant. The Mishna (Sanhedrin 29a) states two rules that extend from this principle:

  1. After the judges deliberate and reach a conclusion, they call in the litigants. The gadol shebedaynim (the senior judge) then states which litigant was victorious and which was not. This task cannot be delegated to another judge, so that the losing party does not suspect that the judge announcing the ruling voted against him. Sefer Meiras Einayim, Choshen Mishpat § 19(1).
  2. After the beis din has adjourned, it is prohibited for a judge to reveal which judges found in favor of each litigant. Regarding this matter, it is stated (Vayikra 19:16) “You shall not go around as a gossiper among your people,” and (Mishle 11:13), “He who reveals a secret is a gossiper. (In other words, telling a litigant that a certain judge did or would have ruled against him incites negative feelings similar to those created by gossip.)

The Rambam explains that the purpose of these rules is to ensure that a litigant is not aware of which judge(s) sided against him. This way he will maintain his esteem for all of the judges who adjudicated his case, as well as the judicial system as a whole. Peirush HaMishnayos; Mishne Torah, Hilchos Sanhedrin 22:9.

This policy is also the basis for another rule concerning the written decision of a beis din. The Gemara (Sanhedrin 30a) records a dispute as to how the court’s decision is to be expressed in writing when it was not unanimous. R’ Yochanan says that only the ruling itself is written (i.e. liable or not liable). He maintains that the prohibition of “gossip” is applicable even to the written decision of the court, so it may not reveal the opinions of the judges. Reish Lakish, on the other hand, holds that the opinion of each judge is recorded in the written decision; otherwise it would give the false implication that the judges were unanimous. Reish Lakish is of the opinion that informing the litigants of the individual judges’ opinions is only “gossip” when done for no reason. However, since the decision is being written for a valid reason––to ensure that the victorious party is able to enforce the judgment––there is no concern of “gossip.” Sanhedrin 30a, Tosfos s.v. Mishum; Yad Ramah. Finally, R’ Elazar is concerned for both “gossip” (like R’ Yochanan) and the false implication of unanimity (like Reish Lakish). Therefore, he says that the proper expression is: “From the words of the judges, he was found not liable.” This implies that there was a debate among the judges, not a unanimous decision, so it does not give a false impression. Also, it does not reveal which judge held which opinion, so there is no trace of “gossip.”



Filed under American Law, Halacha / Jewish Law, Judicial System

2 responses to “Dissenting Opinions

  1. Interesting gemara about R’ Yochanan and Reish Lakish- in a civil beis din with three judges, are litigants allowed to know if there were any dissensions? What if they don’t know which of the judges are the dissenters?

    • The Shulchan Aruch (Choshen Mishpat § 19(2)) rules like R’ Elazar, whose opinion is discussed above. Thus, if the beis din‘s decision is written (see id. § 14(4) for when it may be written), then the litigants may know that there was a disagreement among the judges, but they may not know who dissented.

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