The Value of Dissent | The Honorable Patrick J. Bumatay

By Maren Hendricks October 19, 2023

“Judicial opinions shouldn’t be boring!” insists Judge Patrick J. Bumatay of the Ninth Circuit Court of Appeals. His remarks as BYU Law’s Jurist in Residence focused on the value of incisive, powerful dissenting opinions in shaping Constitutional dialogue, future jurisprudence, and legislation.

Judge Bumatay champions the essential role of dissenting opinions in improving the law, citing Justice Ruth Bader Ginsburg’s scathing but respectful dissent in Ledbetter v. Goodyear Tire & Rubber Co. (2007) and its influence on discriminatory pay legislation enacted only two years later. History can prove dissenters right, he notes, promoting the legitimacy of the US Supreme Court even when the majority gets it wrong. A prime example: Justice John Marshall Harlan’s dissent in Plessy v. Ferguson (1896), in which he declared “our Constitution is colorblind, and neither knows nor tolerates classes among citizens” in disagreement with the majority ruling that “separate but equal” racial segregation was Constitutional.

A brief history of the US Supreme Court’s evolution from the seriatim opinions under Chief Justice John Jay, to the unanimous per curiam orders in 93% percent of cases under Chief Justice Marshall, contextualized the modern Court’s hybrid approach where multiple concurring and dissenting opinions may accompany a majority opinion (although Bumatay pointed out that 47% of Court opinions from last year were decided 9:0). The proliferation of dissenting opinions does not signal acrimony on the Court, Judge Bumatay says, but rather reflects a recognition that voicing opposing views can help to focus the majority, provide transparency in Court decisions where outcomes are controversial, and educate the public (to the extent opinions are “accessible and readable, not boring!”). These considerations inform his own careful dissents, which he crafts with law students—future advocates and judges—in mind.