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Monday, January 29, 2024

Confidence- and Emotion-Denotive Language

Denotive language formally indicates something about how a judge has voted in a particular case. In an earlier post, I distinguished judgment-denotive language, such as “dissenting from the judgment,” from opinion-denotive language, such as “concurring in Part I of the Opinion of the Court.” 

But there are other, less common types of denotive language. The most salient example is “dubitante,” which sometimes presents as highly formal. For example, “Friendly, J., (concurring dubitante)” is a conventional citation in reported cases. We might call this type of expression confidence-denotive language.  

In addition, somewhat less formal expressions indicate a judge’s emotions. The most familiar example is the quasi-formal expression of respect that frequently opens or concludes dissents, such as: “I respectfully dissent.” We might label this type of expression emotion-denotive language.

Last week, Justice Sotomayor concluded a capital dissent with language that was both confidence- and emotion-denotive: “With deep sadness, but commitment to the Eighth Amendment’s protection against cruel and unusual punishment, I respectfully dissent.” Smith v. Hamm, No. 23–6562.

This sort of language, while extraordinary, is more common and diverse than you may think. It may also have legal significance. And it sheds light on judging’s fundamental nature.

Confidence-Denotive Language

To concur dubitante is a widely recognized, even if unusual, form of confidence-denotive language. (Dissenting dubitante also occurs but is even rarer.) What it means to be dubitante in this context—the Latin word means “doubting”—is not entirely clear. Presumably, however, it signifies a sense of special uncertainty with respect to some or all of the ruling or opinion being joined.

Could it matter, legally, whether an opinion is dubitante? Perhaps so. A unanimous ruling or opinion conveys a sense of settledness stemming from widespread agreement. The fact that one or more of the joining jurists not only was dubitantebut also said as much could undercut the decision’s authority. Perhaps the ruling ought to be more easily reversed, distinguished, or overturned when reviewed by a later court. Or the dubitante jurist himself might look back on his vote with a diminished sense of fidelity to it, ascribing it less weight as a personal precedent.

Interestingly, dubitante denotations have not always been given by the authoring judge. As Neil Duxbury points out in The Intricacies of Dicta and Dissent (2021), reporters have often denoted opinions as dubitante—sometimes sparking controversy. This history shows that conventions surrounding all types of denotive language are more fluid and changeable than one might think. Routine judgment-denotive language such as “concurring” or “dissenting” could be replaced or added to. And, in summary rulings, denotive language is sometimes absent, as the votes of some or all justices may not be indicated at all.

At the same time, dubitante has several features that render it especially suited to formal opinion denotation. Because the confidence of jurists is so central to the judicial system, dubitante votes give practical information to litigants and, as we have seen, arguably have legal import, too. Expressions of judicial self-doubt are also rare and so don’t challenge the primacy of judgment-denotive language. Finally, case reporters quickly settled on a concise, conventional way to express this denotation. By contrast, other types of confidence-denotive language may be less workable—consistent with their general absence from legal practice.

Still, one might wonder whether there is, or could be, a counterpart to dubitante, that is, a confidence-denotive term capable of expressing certitude. That possibility leads to the next, partially overlapping topic. 

Emotion-Denotive Language

Less formal is the category of emotion-denotive language. The paradigm here is the sometimes-formulaic statement: “I respectfully dissent.” At least on the surface, this remark conveys an emotional register, namely, respectfulness—as opposed to anger, resentment, despair, and so forth. While “concurring respectfully” is not part of formal citation practice in the way that dubitante is, we can imagine a world in which case reporters created such a practice. They still could.

The “respectfully” dissenting jurist can sometimes partake of confidence-denotation as well. Someone who is in the habit of respectfully dissenting might sometimes withhold the respectfully. A special absence of respectful expression conveys not only deep opposition (an emotional state) but also high confidence. 

More generally, the presence of explicitly confidence-denotive language will have implicit implications for affect (and vice versa). For example, a judge who is dubitante relatively often (such as Judge Friendly) may come across as wishy-washy (because often uncertain), confident (because willing to express uncertainty), or idiosyncratic (because doing something different from the routine).

Justice Kagan has famously embellished the “respectfully” routine. In Rucho v. Common Cause (2019), she penned what is often viewed as her greatest dissent. That opinion concludes with an oft-referenced remark: “With respect but deep sadness, I dissent.” This language signals poignant emotion at odds with the fiery or sarcastic dissents associated with, say, Justice Scalia. (Might some of his dissents be styled: “Scalia, J., dissenting vociferatio”?)

Or consider the joint dissent in Dobbs v. Jackson Women’s Health (2022). In its introduction, the joint dissent asserted: “We dissent.” No respectfully there, even though its authors often say so. Ditto for the opinion’s concluding sentence: “With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.” The set-off language is somewhat argumentative, though it also explains and specifies the emotion-denotive language.

In addition, judges sometimes indicate in their opinions that they are concurring “regretfully” or “reluctantly.” (Thanks to Neil Duxbury for this observation and related insights.) This sort of denotation not only evinces an emotional state but also often has a specific legal implication: the judge is following erroneous-but-binding precedent. See, e.g., McKinney v. Starbucks Corp., 77 F.4th 391, 401 (6th Cir. 2023) (Readler, J., concurring) (“… I reluctantly concur”); In re Palacios, 931 F.3d 1314, 1318 (2019) (Rosenbaum, J., concurring) (“I regretfully concur . . .”). Advocates and courts alike pick up on these signals. At other times, judges or justices use these expressions to signal other qualms, such as procedural disagreements. See, e.g., Delaware v. Fensterer, 474 U.S. 15, 24 (1985) (Stevens., J., concurring) (“… I reluctantly concur in the judgment”).

Both confidence- and emotion-denotive expressions tend to surface a judge’s personality and, often, a sense of struggle or difficulty. In that sense, these expressions are at odds with legal formalism and the rhetoric of inevitability that often characterizes judicial prose. The appeal of formal inevitability is at its height in majority rulings, which is probably why confidence- and emotion-denotive language arises in separate opinions.

But perhaps that, too, is a contingent feature of practice. Might a Supreme Court majority decision one day end: “We righteously affirm”?

Justice Sotomayor in Smith v. Hamm

That brings us back to Justice Sotomayor’s remarkable denotive language last week: “With deep sadness, but commitment to the Eighth Amendment’s protection against cruel and unusual punishment, I respectfully dissent.” 

This sentence combines the routine “respectfully” with Kagan’s “deep sadness” expression from Rucho. (I am aware of no other cases—apart from Rucho and Smith—that use the “deep sadness” denotive language.)

In addition, Sotomayor refers to her “commitment to the Eighth Amendment’s protection against cruel and unusual punishment.”  This language connotes resolve and so adds a third emotional ingredient to the act of dissent. It also resembles the explanatory language in the Dobbs dissent by referring to arguments on the merits.

The presence of “respectfully” amidst “deep sadness” and “commitment” may suggest recognition that the majority’s view was legally reasonable. (Justice Kagan’s separate dissent argued only that the capital defendant’s claim was “Arguably” correct.) 

Or perhaps Sotomayor was accepting defeat in the present while hopefully looking toward to a different future. A comparison might be drawn with Justice Holmes’s Lochner dissent, which begins: “I regret sincerely that I am unable to agree with the judgment in this case, and that I think it my duty to express my dissent.” (Should the citation read: “Holmes, J., regretfully and dutifully dissenting”?)

While powerful, Sotomayor’s extraordinary denotive language also points toward a problem. Denotive language is effective because it is usually crisp and categorical. “Dissenting,” “concurring in part,” “dubitante,” “respectfully,” and so on are briefly stated, recognized denotation-types. When mechanical denotive language gets overlong, such as “announced the judgment of the Court and delivered the opinion of the Court, except as to Parts IV–B, IV–C, and IV–D” (National Pork v. Ross), it is both cumbersome and silly. 

The far more expressive language in Dobbs and Smith presents a related concern. Those opinions show that denotive language can become explanatory, complex, or wordy—much like the judicial opinions they accompany. And as an opinion’s denotation blurs with the opinion itself, the denotive language loses its focal power. If the denotive language from Smith were formalized, for instance, it might read: “Sotomayor, J., dissenting sadly, committedly, and respectfully.”

The appeal of crisp, categorical denotive language probably explains why there is an abiding distinction between, for example, the formal denotive language at the heading of an opinion and the less formal language that sometimes concludes it. Unsurprising then, that Sotomayor’s Smith dissent leads off with a utilitarian denotation: “dissenting from the denial of application for stay and denial of certiorari.” More elaborate denotive language remains exceptional or relatively informal—and rightly so. Still, recent opinions show that there is room for innovation, provided the right occasion. 

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Creative uses of denotive language have always been with us, and they may now be on the rise. By giving greater insight into a judge’s personality and decisional experience, denotive language can help shape the legal system’s understanding of the judicial role. Yes, judges vote. But they variously do so with doubts, confidence, respect, regret, reluctance, sadness, sorrow, dutifulness, or commitment.

Cross-posted from Re's Judicata. (Some tiny edits shortly after posting.)

Posted by Richard M. Re on January 29, 2024 at 11:36 AM | Permalink


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