Thursday, March 29, 2007

Debating the virtues of 'Judicial Consensus' and the role of dissents in judicial opinions

In the comments section of the previous post, Vivek Reddy has this to say while discussing the Coelho case:

"One interesting thing about the Ninth Schedule judgment is that it was a unanimous judgment. In the US, John Roberts is emphasizing a lot on the virture of unanimity. I was impressed that our court was able to acquire it, even if it was by default."

Anyone who has attempted to read the full text of the judgment in the Kesavananda case will have sympathy for the proposition that judges should strive for consensus, and where possible, write a single or at most two or three opinions clearly setting out their decision and the supporting reasoning. To that extent, I think Vivek is right to support the fact that Coelho and some other recent landmark judgments of the Indian Supreme Court have sought to achieve and reflect ‘judicial consensus.’ I am not sure, however, whether this has necessarily added to the quality of the reasoning of these judgments.

There are other considerations to bear in mind in debating whether judicial consensus as reflected in single judgments for the court is a good thing. Here, I draw upon a recent discussion in the context of U.S. constitutional law, which has parallels for Indian constitutional discourse. Reacting to Chief Justice Roberts' statement that Vivek refers to, Professor Geoffrey Stone, a leading U.S. constitutional scholar has this to say (his full views on the Roberts speech are available here):

"The Court has many responsibilities, and one of them is to produce majority opinions that state a rule of law. Certainly, if the Justices fell into the habit of issuing nine separate opinions in every case, that would create another form of chaos. ....

Chief Justice Roberts wants to promote more unanimous opinions, burying disagreements among the Justices. This, too, is bad policy. The legitimacy of the judicial branch rests largely on the responsibility of judges to explain and justify their decisions in opinions that can be publicly read, analyzed, and criticized. Consensus opinions designed to hide real disagreements among the Justices fail abdicate that responsibility. The price of achieving consensus is inevitably to eliminate from the Court’s opinion anything that one or more of the Justices disagrees with. The result is opinions that say little of substance, mask the critical steps in the Court’s reasoning, and persuade no one of the wisdom of the decision or the quality of the reasoning. To make the point dramatically, the quintessential consensus opinion that decides a case narrowly would read: “We reverse.”

It is surely true that a proliferation of separate concurring and dissenting opinions can be annoying, confusing, and divisive. But such opinions often play a central role in the evolution of the law. By making public the disagreements within the Court, such separate opinions foster a vigorous discourse about the merits of the competing positions and energize robust debate about the different ways to resolve constitutional questions. This ongoing, public deliberation ultimately strengthens the Supreme Court’s work product and contributes to public understanding. To squelch such separate opinions in order to achieve the appearance of consensus would both degrade the quality of the Court’s work and undermine the public’s and the legal profession’s ability to evaluate the seriousness and persuasiveness of the Court’s reasoning. In the long run, it would undermine the Court itself.

It is also important to note that some of the most influential opinions in the history of the Supreme Court were concurring and dissenting opinions. Although they did not command the support a majority of the Justices at the time, the eventually won the day because of the force of their reasoning. Familiar examples, to name just a few, include Justice Harlan’s famous dissenting opinion in Plessy v. Ferguson, the pivotal dissenting and concurring opinions of Justices Holmes and Brandeis in a series of free speech decisions following World War I, and Justice Robert Jackson’s landmark concurring opinion in the Steel Seizure case. By opening the disagreements within the Court to the light of public scrutiny, these opinions exemplify the tradition that despite the principle of precedent, the work of the Supreme Court is always a work in progress that must be open to public scrutiny if it is to retain its legitimacy."

I find Stone's analysis quite persuasive. One can think of dissents in India to add to Stone's list: Justice Fazl Ali's dissent in Gopalan, Justice Khanna's dissent in ADM Jabalpur, to name just two prominent ones.

While clarity in judicial opinions and reasoning is a very important consideration, it is equally important that judges aim at getting their results and reasoning right. To the extent that attempts at judicial consensus undermine that objective, they should be viewed with suspicion.
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