When to Hold, When to Fold, and When to Reshuffle: The Art of Decisionmaking on a Multi-Member Court
The Brennan Center Jorde Symposium on Constitutional Law
Abstract
This Essay explores the instrumental and normative considerations that prompt judges to publish separate opinions. After discussing the traditions of separate writing in American judicial practice, the author provides a contemporary judge"s perspective on the aims of separate opinions and on the cost-benefit analysis that judges invariably undertake when contemplating whether to write a concurrence or dissent. Turning to her own work on the Seventh Circuit, the author then identifies three broad categories of dissents she has penned over the past sixteen years: "principle-based dissents," "process-based dissents," and "accuracy-focused dissents." The Essay concludes by suggesting that a more forthright appraisal of the dynamics of decisionmaking on multi-member courts could benefit the judicial system as a whole.
