Justice Ruth Bader Ginsburg (right) gave a no-doubt-unexpected lesson in comparative judicial studies during a lecture last week at an Atlanta synagogue. In "The Role of Dissenting Opinions," she noted that the U.S. Supreme Court's "practice of revealing dissents ... is hardly universal." Describing "civil law tradition that holds sway in Europe, and in countries once controlled by a continental power," and in the European Court of Justice, she said:[C]ourts issue a collective judgment, written in an impersonal style. The author of the judgment is neither named nor otherwise identifiable. Disagreement, if it exists, is not disclosed. That pattern prevails without exception in French tribunals ....
In contrast, in the
British common law tradition ... there was conventionally no 'opinion for the court; disposing of a case under review. Instead, the judges hearing the matter composed their own individual opinions which, taken together, revealed the court's disposition.
Those opposite poles have shifted somewhat, most notably in the "European Court of Human Rights," which "publishes signed dissenting opinions," she said.
Ginsburg then turned to the "middle ground" position of the U.S. Court. Early on it,
like the House of Lords, Britain's highest tribunal, issued seriatim opinions. Each Justice spoke for himself whenever more than a memorandum judgment issued. But John Marshall, ... Chief Justice..., thought that practice ill-advised. In its place, he established the practice of announcing judgments in a single opinion for the Court, which he generally wrote himself. Opinions that speak for the Court remain the custom today. But unlike courts in civil law systems, and in line with the British tradition, each member of the Court has the prerogative to speak out separately.
Though she allowed that "[w]hat is right for one system and society may not be right for another," Ginsburg made clear that the practice of dissenting is right for judges in the United States. Thus did she set herself expressly at odds with Chief Justice John G. Roberts' stated preference for unanimity, and thus did she defend the 2 instances last Term (1, about which we've posted, was the abortion case Gonzales v. Carhart) that she took the rare step of announcing her dissent from the bench.
