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Friday, July 21, 2023

Not-So Powerful Dissents

Powerful is common adjective for describing a judicial dissent. "Judge X wrote a powerful dissent," or "In her powerful dissent, Judge X said . . ." Unless powerful means "I agree with it," I must confess that I've not read a powerful dissent in many years.

There are problems with using powerful as the way of thinking about dissents. First, if it was so powerful, why was the majority of the Court unconvinced? Second, written dissents are not speeches. Power can be a good way of assessing a speech, but I'm not sure that's true for judicial opinions. Third, power may not be the author's goal. Maybe a dissenting judge wants to be thoughtful or coldly logical. Fourth, modern judicial dissents tend to be long. Length is the enemy of power. Whatever power there is gets dissipated or lost. I'm not sure why judicial culture has evolved to say that dissents must be long while concurrences can be short. But that seems to be the case.

Maybe powerful just means passionate or emotional. Some dissents are more emotional than others. Does that make them powerful? Not necessarily. But that's probably just a matter of taste.   

Posted by Gerard Magliocca on July 21, 2023 at 10:47 AM | Permalink


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