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Dissenting Opinions in Constitutional Courts

Published online by Cambridge University Press:  06 March 2019

Katalin Kelemen

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Although long considered alien to the civil law tradition, the publication of separate dissenting or concurring opinions is now permitted by the majority of European constitutional courts, the only exceptions being the Austrian, Belgian, French, Italian, and Luxembourgish constitutional courts. The decades-long history of dissenting opinions in the practice of several European constitutional courts calls for an analysis. While there is an extensive literature in the United States regarding the use of dissenting opinions, comprehensive empirical research is still absent in Europe. American scholars have conducted research from several different points of view. Legal scholars have dealt primarily with the relationship between dissenting opinions and the doctrine of binding precedent, and have tried to solve the problem of the precedential value of plurality decisions, e.g. decisions lacking a reasoning shared by the majority of the judges. Political scientists, for their part, have studied the policy-making role of judges and strategic opinion-writing. Scholars of law and economics have analyzed the costs and benefits of writing separately. Even judges themselves have often expressed their own thoughts in essays or conference speeches on the matter.

Type
Part B: Technique, Doctrine and Internal Logic of Constitutional Reasoning
Information
German Law Journal , Volume 14 , Issue 8: Special Issue - Constitutional Reasoning , 01 August 2013 , pp. 1345 - 1371
Copyright
Copyright © 2013 by German Law Journal GbR 

References

1 There are also examples of continental European countries that allow their ordinary judges to write dissenting opinions: Estonia, Greece (two countries that do not have a separate court for constitutional review), and Spain (which allows the publication both to ordinary judges and to the judges of the Tribunal Constitucional). See Saulle Panizza, L'introduzione dell'opinione dissenziente nel sistema di giustizia costituzionale 110–19 (Giappichelli ed., 1998). Dissenting opinions are part of the Scandinavian legal tradition as well. See Alessandro Simoni & Filippo Valguarnera, La tradizione giuridica dei Paesi nordici 64 (Giappichelli ed., 2008).Google Scholar

2 Empirical research and academic discussion has been limited even in England. The last comprehensive discussions on the decision-making process of English judges remain those of Louis Blom-Cooper & Gavin Drewry, Final Appeal: A Study of the House of Lords in its Judicial Capacity (1972) and Alan Paterson, The Law Lords (1982). See also John Bell, Policy arguments in judicial decisions (1983). A more recent essay by an English scholar is the one of John Alder, Dissents in Courts of Last Resort: Tragic Choices, 20 Oxford J. Legal Stud. 221 (2000). In Europe, a comprehensive analysis is still missing both at the national level and in a comparative perspective, but not at the supranational level. The European Court of Human Rights publishes dissenting opinions and these were subject of analysis by scholars such as the Dutch Fred J. Bruinsma and Matthijs De Blois, Rules of Law from Westport to Wladiwostok. Separate Opinions in the European Court of Human Rights, 15 Neth. Q. Hum. Rts. 175 (1997) and other essays authored by Bruinsma; or the English Robin C.A. White & Iris Boussiakou, Separate Opinions in the European Court of Human Rights, 9 Hum. Rts. L. Rev. 37 (2009).Google Scholar

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4 See generally Epstein, Lee & Knight, Jack, The Choices Justices Make (1997); Thomas H. Hammond et al., Strategic Behavior and Policy Choice on the U.S. Supreme Court (2005); Pamela C. Corley, Concurring Opinion Writing on the U.S. Supreme Court (2010).Google Scholar

5 See generally Lee Epstein, William M. Landes & Posner, Richard A., Why (and When) Judges Dissent: A Theoretical and Empirical Analysis, 3 J. Legal Analysis 101 (2011).Google Scholar

6 See Brennan, William J., Remarks at the Third Annual Mathew O. Tobriner Memorial Lecture at the University of California, Hastings College of the Law (Nov. 18, 1985): William J. Brennan, In Defense of Dissents, 37 Hastings L.J. 427, 430 (1986); Ruth Bader Ginsburg, Jurisprudential Lecture at the University of Washington School of Law (May 11, 1989): Ruth Bader Ginsburg, Remarks on Writing Separately, 65 Wash. L. Rev. 133 (1990); Antonin Scalia, Remarks on Dissenting Opinions, in L'opinione dissenziente 411 (Adele Anzon ed., 1995); Ruth Bader Ginsburg, Presentation to the Harvard Club of Washington, D.C., (Dec. 17, 2009): Ruth Bader Ginsburg, The Role of Dissenting Opinions, 95 Minn. L. Rev. 1, 2–7 (2010).Google Scholar

7 Chapter XIV of the Ordenanzas de Medina, in Novíssima Recompilación de las leyes de España, Tomo II, Boletín Oficial del Estado 350 (1976).Google Scholar

8 See Luatti, Lorenzo, Profili costituzionali del voto particolare. L'esperienza del tribunale costituzionale spagnolo 163–69 (Giuffrè ed., 1995).Google Scholar

9 See Denti, Vittorio, Per il ritorno al “voto di scissura” nelle decisioni giudiziarie, in Le opinioni dissenzienti dei giudici costituzionali ed internazionali 1, 3–6 (Costantino Mortati ed., 1964).Google Scholar

10 See Nadelmann, Kurt H., Non-Disclosure of Dissents in Constitutional Courts: Italy and West Germany, 13 Am. J. Comp. L. 268, 272 (1964).Google Scholar

11 See Oneto, Luisa Paola, Le opinioni dissenzienti dei giudici della Corte costituzionale Tedesca, in Annali della Facoltà di Scienze Politiche di Genova 1083, 1087 (1976-77).Google Scholar

12 See Bericht der Kommission, in Die gesammten Materialien zu dem Gerichtsverfassungsgesetz 72 (Carl Hahn ed., 1883), cited in Arthur von Mehren, The Judicial Process: A Comparative Analysis, 5 Am. J. Comp. L. 197, 208 n.42 (1956). The Commission's report states “[t]he development of law and of legal science will be fostered by careful reflection in libraries, but not through violent discussions following expressions of polemically motivated dissenting opinions” and that “[a] court's principal function is to decide the individual case justly and to uphold the authority of the laws, not to provoke scientific discussions over legal questions.” Id. Google Scholar

13 Mehren, von, supra note 12, at 209 n.42.Google Scholar

14 The subject of the decision was of primary importance for the German legal system. It dealt with the compatibility of the European Defense Community Treaties with the Bonn Constitution. The Court decided to reveal the number of yes and no votes to the public in order to stop rumors about a close vote. Twenty judges voted in favor and two against the decision. Kurt H. Nadelmann, Non-Disclosure of Dissents in Constitutional Courts: Italy and West Germany, 13 Am. J. Comp. L. 268, 272 (1964).CrossRefGoogle Scholar

15 The disagreement between the judges concerned the effects of the decision, as it consisted of an opinion requested by the Federal President. The majority of the judges considered these opinions given during consultation (Gutachtenverfahren) to be binding upon the Court in future cases if the same question is raised again as a conflict of competence. Judge Willi Geiger instead was of the opinion that in a second procedure the Court should not be bound by its previous opinion, because in the consultation proceedings the parties do not have the right to be heard. Jörg Luther, L'esperienza del voto dissenziente nei paesi di lingua tedesca, in Politica del diritto 241, 244 (1994).Google Scholar

16 See Amram, Philip W., The Dissenting Opinion Comes to the German Courts, 6 Am. J. Comp. L. 108, 110 (1957). A well-known example is the Spiegel-decision. See Bundesverfassungsgericht [BVerfGE – Federal Constitutional Court], Case No. 1 BvR 586/62, 610/63, 512/64, Dejure 20, 162 (Aug. 5, 1966), http://dejure.org/dienste/vernetzung/rechtsprechung?Text=BVerfGE%2020%2C%20162&Suche=BVerfGE%2020%2C%20162.Google Scholar

17 The dissenting opinion was introduced at first by the Rules of the Constitutional Court of the Land of Bayern (in 1948), but here dissents are published without the name of the dissenting judge. Afterwards, it was also introduced by the Rules of the Staatsgerichtshof (the state supreme court) of the Land of Bremen in 1956, but published only on request of the dissenter and is not applied anymore from 1968. Luther, supra note 15, at 242.Google Scholar

18 Ley Orgánica del Tribunal de Garantías Constitucionales [Constitutional Court Organization Act] art. 41 (June 14, 1933) (Spain).Google Scholar

19 Ley Orgánica del Poder Judicial [L.O.P.J.] [Law on the Judiciary] 6/1985 (Spain).Google Scholar

20 See Rörig, Maria Theresia & Carmen Guerrero Picó, L'opinione dissenziente nella prassi del Bundesverfassungsgericht e del Tribunal Constitucional spagnolo, in Cortecostituzionale.it (2009), http://www.cortecostituzionale.it/documenti/convegni_seminari/CC_SS_opinione_dissenziente_12012010.pdf. See also Georg Vanberg, Politics of Constitutional Review in Germany 91 (2007).Google Scholar

21 See Panizza, Saulle, L'introduzione dell'opinione dissenziente nel sistema di giustizia costituzionale 115 (Giappichelli ed., 1998).Google Scholar

22 Id. Google Scholar

23 Enriched and modified to a different extent from country to country. For example, Hungary and Poland did not introduce a full constitutional complaint, just a normative constitutional complaint. On the other hand, Hungary introduced actio popularis, extending considerably access to the constitutional court. For a recent comparative study on individual access to constitutional justice, see Eur. Comm'n for Democracy Through Law [Venice Comm'n] Study No. 538/2009 (adopted in Dec. 2010), http://www.venice.coe.int/webforms/documents/CDLAD%282010%29039rev.aspx (last visited June 17, 2013). In Hungary, the actio popularis has been abolished by the new Fundamental Law, which entered into force on 1 January 2012.Google Scholar

24 In practice, however, the latter competence is used in the majority of the cases. See the official statistics available on the website of the Court: http://www.ccr.ro/uploads/activ02_13_1.pdf (last visited June 17, 2013). From the moment of its establishment until the end of February 2013 the Romanian Constitutional Court dealt with 30,114 cases and only 0.008% of them concerned a priori review (240 cases), while 97.6% emerged from a concrete controversy (own calculations).Google Scholar

25 Act no. 232/2004 art. 59 (June 3, 2004), which modified the Constitutional Court Act (no. 47/1992), available at http://www.cdep.ro/proiecte/2004/100/30/3/leg_pl133_04.pdf (Rom.).Google Scholar

26 See Laffranque, Julia, Dissenting Opinions and Judicial Independence, 8 Jurid. Int'l 162, 165 (2003).Google Scholar

27 Law no. X-1806 (Nov. 11, 2008), Valstybės žinios (Official Gazette) No. 134–5179 (Nov. 22, 2008). The provision allowing the publication of dissent is now contained in Article 55 of the Constitutional Court Act. The Act's English translation is available on the official website of the Lithuanian Constitutional Court: http://www.lrkt.lt/Documents3_e.html (last visited June, 17 2013). Consequently, the Constitutional Court modified its Rules of Procedure inserting a Section VII entitled “Dissenting opinion of a Justice of the Constitutional Court” in Chapter VIII concerning the consideration of a case at a judicial hearing (Decision of Nov. 26, 2008). For the English translation of the Rules of the Constitutional Court see its official website: http://www.lrkt.lt/Documents4_e.html (last visited June 17, 2013).Google Scholar

28 See Article 225 of the Latvia Rules of Procedure of the Constitutional Court providing that dissenting opinions shall be kept attached to the case file for three months and after that are published; and Article 33 par. 2 of the Constitutional Court Law providing that once a year the Constitutional Court shall publish a collection of judgments of the Constitutional Court, including all judgments in full and individual opinions of justices attached to cases. The English translation of the Rules of Procedure and of the Constitutional Court Law is available on the site of the Court: http://www.satv.tiesa.gov.lv/.Google Scholar

29 I thank Prof. Dr. Arne Mavćić, European Law School Faculty for Government and European Studies, for this observation.Google Scholar

30 The judgments, together with the separate opinions, are included on the main computer database in the Czech Republic (called ASPI), but the names of dissenting Justices are redacted out, and only their initials appear. I thank Mark Gillis for this information.Google Scholar

31 See generally Cappelletti, Mauro, Judicial Review in the Contemporary World 55 (1971) (becoming one of the first scholars theorizing the models of judicial review).Google Scholar

32 There is no hierarchy in federal states either. German state constitutional courts cannot be considered the first instance courts of the German constitutional justice system.Google Scholar

33 See Victor Ferreres Comella, Constitutional Courts and Democratic Values 58 (2009).Google Scholar

34 See Laffranque, Julia, Dissenting Opinion in the European Court of Justice. Estonia's Possible Contribution to the Democratisation of the European Union Juridical System, 9 Jur. Int. 14, 17 (2003).Google Scholar

35 See Cohen, Mathilde, Reason-Giving in Court Practice: Decision-makers at the Crossroads, 14 Colum. J. Eur. L. 257, 264 (2008).Google Scholar

36 See, e.g., Rosenfeld, Michel, Constitutional Adjudication in Europe and the United States: Paradoxes and Contrasts, in European and US Constitutionalism 165, 184 (Georg Nolte ed., 2005). The argument of counter-majoritarian difficulty is addressed against the power of judicial review on the ground that the judiciary, not being elected by the people, lacks democratic legitimacy; therefore, its power to set aside unconstitutional legislation is unjustified.Google Scholar

37 Abstract review means that the court compares two normative texts and assesses their compatibility without regard to their concrete application. Concrete review, on the other hand, implies that there is a controversy from which the constitutional question has arisen.Google Scholar

38 See Fabbrini, Federico, Kelsen in Paris: France's Constitutional Reform and the Introduction of a Posteriori Constitutional Review of Legislation, 9 German L. J. 1297, 1297 (2008).Google Scholar

39 See Gentili, Gianluca, A Comparative Perspective on Direct Access to Constitutional and Supreme Courts in Africa, Asia, Europe and Latin America, 29 Penn St. Int'l L. Rev. 705, 707 (2010).Google Scholar

40 See Garlicki, Lech, Constitutional Court Versus Supreme Courts, 5 Int'l J. Const. L. 44, 47 (2007).Google Scholar

41 Comella, Ferreres, supra note 33, at 65.Google Scholar

42 See 28 U.S.C. § 2403 (2012).Google Scholar

43 See supra text accompanying note 37. With reference to the French a priori review it was called also ‘constitutional review of objective law’ (controllo di costituzionalità di diritto obbiettivo). See Gustavo Zagrebelsky, Il diritto mite 78–79 (Einaudi ed., 1992).Google Scholar

44 Alec Stone Sweet, Why Europe Rejected American Judicial Review: And Why It May Not Matter, 101 Mich. L. Rev. 2744, 2771 (2003).Google Scholar

45 Id. at 2773–74. Abstract review has become the “normal” mode of adjudicating also in the domain of reproductive rights. Id. at 2777.Google Scholar

46 Id. at 2777.Google Scholar

47 This latter technique is called the “saving construction” in American parlance, “strict reserves of interpretation” in France, and verfassungskonforme Auslegung in German. Id. at 2778.Google Scholar

48 The Czechoslovakian Constitutional Court, established in 1920, is another exception, even if in its twenty years of functioning it delivered only 65 decisions. See Jiři Přibaň, Judicial Power vs. Democratic Representation: The Culture of Constitutionalism and Human Rights in the Czech Legal System, in Constitutional Justice, East and West 373, 374 (Wojciech Sadurski ed., 2003).Google Scholar

49 See Teitel, Ruti, Transitional Jurisprudence: The Role of Law in Political Transformation, 106 Yale L.J. 2009, 2031 (1997).Google Scholar

50 I thank Wojciech Sadurski for this suggestion.Google Scholar

51 See László Sólyom, The Role of Constitutional Courts in the Transition to Democracy: With Special Reference to Hungary, 18 Int'l Soc. 133, 135 (2003).Google Scholar

52 This was the opinion expressed by Hjalte Rasmussen in relation to the European Court of Justice. He argues in favor of the introduction of dissenting opinions into the practice of the Court, but at the same time he recognizes that the ban on the publication of dissent served a legitimate purpose at the time of the adoption of the foundational treaties of the European Communities. See Hjalte Rasmussen, Legal Opinion about the European Court of Justice's Competence Transgressions, Poor Reasonings and the Complete Non-Transparency of Willensbildung 8–9 (2009), available at http://curis.ku.dk/ws/files/18105617/Doc (last visited June 17, 2013). The situation of the European Court of Justice was, however, peculiar, because it did not emerge in a context of transition from an authoritarian regime to democracy but as a new supranational court which had to operate in a completely new legal system and affirm the legitimacy of EC law. Recently, in June 2012, the European Parliament's Committee on Legal Affairs requested the Directorate General for Internal Policies a study on the practice of dissenting opinions in the Member States of the European Union, with the aim of assessing the appropriateness of the introduction of separate opinions for the European Court of Justice. The study, authored by Rosa Raffaelli, is available in its entirety at http://www.europarl.europa.eu/committees/en/studiesdownload.html?languageDocument=EN&file=78915 (last visited June 17, 2013).Google Scholar

53 See Raffaelli, , supra Part A.I for Germany and Part A.II for Lithuania.Google Scholar

54 In Germany they were introduced after 19 years (in 1970), in Lithuania after 15 years (in 2008).Google Scholar

55 According to András Jakab, constitutional courts are able to develop a system of concepts considerably more sophisticated than that of the actual text of the Constitution in order to serve as a “helping toolkit” for the solution of future cases. Moreover, this conceptual system is not always based on the text of the Constitution. It can also be the result of a text-independent abstract speculation. See András Jakab, Constitutional Reasoning in Constitutional Court – A European Perspective 2, 29 (2011), available at http://ssrn.com/abstract=1956657 (last visited June 17, 2013).Google Scholar

56 Sadurski, Wojciech, Constitutional Courts in Transition Processes: Legitimacy and Democratization 4 (Sydney Law Sch. Legal Studies Research Paper No. 11/53, 2011), available at http://ssrn.com/abstract=1919363 (last visited June 17, 2013).Google Scholar

57 The notion of judicial activism in relation to legitimacy has been discussed mostly by political scientists. See, e.g., Christian Boulanger, Europeanization Through Judicial Activism? CEE Constitutional Courts’ Legitimacy and the Return to Europe, in Spreading Democracy and the Rule of Law? Part II, 263 (Wojciech Sadurski et al. eds., 2006); Shannon Ishiyama Smithey & John Ishiyama, Judicial Activism in Post-Communist Politics, 36 Law & Soc'y Rev. 719, 720 (2002).Google Scholar

58 Sadurski, , supra note 56, at 4.Google Scholar

59 It was also explicitly declared by László Sólyom, the first President of the Hungarian Constitutional Court. See András Mink, Interview with László Sólyom, 6 E. Eur. Const. Rev. 71, 72 (1997).Google Scholar

60 See, e.g., Sergio Bartole, Conclusions: Legitimacy of Constitutional Court: Between Policy Making and Legal Science, in Justice, Constitutional, East and West 409 (Wojciech Sadurski ed., 2003).Google Scholar

61 Laffranque, , supra note 26, at 168.Google Scholar

62 Id. Google Scholar

63 Commission, Venice, The Composition of Constitutional Courts, in Science and Technique of Democracy No. 20 pt. 4.2 (1997), available at http://www.venice.coe.int/webforms/documents/CDL-STD(1997)020.aspx (last visited June 17, 2013).Google Scholar

64 See Salzberger, Eli M. & Voigt, Stefan, On the Delegation of Powers: With Special Emphasis on Central and Eastern Europe, 13 Const. Pol. Econ. 25, 38 (2002).Google Scholar

65 The most recent examples are the European Court of Human Rights and the Hungarian Constitutional Court, which functioned with re-eligible judges until 2010 and 2011, respectively. See European Convention on Human Rights, Protocol 14, art. 2, which modified art. 23 of the Convention and entered into force on 1 June 2010, and art. 6, par. 3 of the new Hungarian Constitutional Court Act (Law no. CLI/2011), which entered into force together with the new Fundamental Law on 1 January 2012. In both cases the abolition of the possibility of re-election was accompanied by an extension of the term of office.Google Scholar

66 Laffranque, , supra note 26, at 169.Google Scholar

67 See Imre Vörös, Dixi et salvavi. Különvélemények, párhuzamos indokolások [Dixi et salvavi. Dissenting and concurring opinions] (Logod Bt. ed., 2000).Google Scholar

68 The other function, according to Judge Vörös, is the one related to the evolution of constitutional law. Id. at 5–7. It is due precisely to the publication of dissenting opinions that the contrast between Judge Vörös and the Court's influential President, László Sólyom, became well-known at that time. In fact, half of the dissents written by Judge Vörös (9 out of 18) were expressed in cases in which the majority judgment was written by President Sólyom (as rapporteur judge).Google Scholar

69 Ezekiel 3:19.Google Scholar

70 According to Zdeněk Kühn and Jan Kysela this acknowledges that European constitutional courts are major actors of domestic politics. The political scrutiny of nominees is made possible also by the fact that constitutional judges are generally seasoned lawyers, scholars or politicians with a clear background and a record of mature opinions. See Zdeněk Kühn & Jan Kysela, Nomination of Constitutional Justices in Post-Communist Countries: Trial, Error, Conflict in the Czech Republic, 2 Eur. Const. L. Rev. 183, 185 (2006).Google Scholar

71 “All orders shall be passed with a definite majority.” Austrian Constitutional Court Act [VfGG] No. 85/1953 § 31. The Act acknowledges the possibility of the emergence of diverging opinions and contains detailed rules on how to proceed if none of the opinions reached the majority required for a decision. Id. at §§ 31–32. For the removal from office of a constitutional judge two-thirds majority is required. Id. § 10, para. 4.Google Scholar

72 Id. § 31. In a similar way, unanimity is also required from the chambers of the German Federal Constitutional Court if they refuse to decide an application by an ordinary judge and when they decide on the admissibility of constitutional complaints. Bundesverfassungsgerichts-Gesetz [BVerfGG] [Federal Constitutional Court Act], Mar. 12, 1951, Reichsgesetzblatt [RGBl.] 1823, as amended, §§ 81a, 93d (Ger.).Google Scholar

73 Legge 11 marzo 1953, n. 87 art. 16 (It.), available at http://www.governo.it/Presidenza/USRI/magistrature/norme/L87_1953.pdf.Google Scholar

74 The exception is provided for by another law containing supplementary norms concerning the Constitutional Court. Id. at n. 1 art. 7, available at http://www.cortecostituzionale.it/documenti/download/pdf/CC_SS_fonti_lc_11031953_n_1_rev.pdf (last visited June 17, 2013). The same rule can be found in Austria. See supra text accompanying note 68.Google Scholar

75 BVerfGG § 15 para. 4 (Ger.).Google Scholar

76 Abraham, Henry J., The Judicial Process 239 (1998).Google Scholar

77 Frankfurter, Felix, Mr. Justice Roberts, 104 U. Pa. L. Rev. 311, 313 (1955).Google Scholar

78 See Lazarus, David, The Supreme Court's Excessive Secrecy: Why It Isn't Merited, FindLaw Legal News, Sept. 30, 2004, http://writ.news.findlaw.com/lazarus/20040930.html (last visited June 17, 2013).Google Scholar

79 Abraham, , supra note 76, at 240.Google Scholar

80 Tie votes are an exception to this rule. In these cases no opinion is written at all, and the Court does not announce on which side of the tie the Justices stood. See id. at 219. The so called per curiam opinions are another exception to the rule. A per curiam is an unsigned, usually brief opinion for the Court, applying res judicata, and amount to 15–25% of all judgments. See id. at 201–202.Google Scholar

81 See, e.g., BVerfGG art. 30(1).Google Scholar

82 For example, in Bulgaria, decisions on the lifting of a justice's immunity or establishment of his actual incapacity to perform his duties and decisions on impeachments by the National Assembly against the President or the Vice President cannot reveal disagreements between the judges. See Konstitutsiya na Republika Balgariya [Constitution] art. 148 (2), 149 (1) July 12, 1991, (Bulg.); Rules on the Organization of the Activities of the Constitutional Court, No. 106/20 art. 32 para. 4 (Dec. 6, 1991), available in English at http://legislationline.org/documents/action/popup/id/6197 (last visited Mar. 15, 2012).Google Scholar

83 Blom-Cooper & Drewry, , supra note 2, at 81. Under the statute in force today, the presiding judge may authorize the publication of separate opinions in criminal appeals.Google Scholar

84 See, e.g., Hammond et al., supra note 4.Google Scholar

85 In the United States law clerks of the Justice have come to the spotlight recently. They started to gain the attention of commentators and scholars in the last two decades, since some of them revealed confidential information in relation to certain cases. See generally David Lane, Bush v. Gore, Vanity Fair, and a Supreme Court Law Clerk's Duty of Confidentiality, 18 Geo. J. Legal Ethics 863 (2004).Google Scholar

86 Scalia, , supra note 6, at 422. According to Justice Scalia “the mere prospect of a separate writing renders the writer of the majority opinion more receptive to reasonable suggestions on major points.”Google Scholar

87 In the words of Justice Brennan, “[f]or simply by infusing different ideas and methods of analysis into judicial decision-making, dissents prevent that process from being rigid or stale. And, each time the Court revisits an issue, the justices are forced by a dissent to reconsider the fundamental questions and to rethink the result.” Brennan, supra note 6, at 436.Google Scholar

88 In the period 1990–2007, there were one or more separate opinions in 62% of the cases in the U.S. Supreme Court. See Epstein et al., supra note 5, at 106. On the German Federal Constitutional Court the dissent rate hardly reaches 6%. In the period 1971–2002, only 115 decisions out of 1,781 revealed disagreement between judges. See Vanberg, supra note 20, at 91. In the Spanish Constitutional Court the dissent rate is somewhat higher (in the period 1981–2008: 12,7%), but still does reach the American level. Rörig & Guerrero Picó, supra note 20, at 15.Google Scholar

89 Kommers, Donald P., The Constitutional Jurisprudence of the Federal Republic of Germany 26 (1997).Google Scholar

90 Vörös, supra note 67.Google Scholar

91 Interesting research carried out by Canadian scholars analyzed judicial opinions (both majority and separate opinions) in order to understand how emotion and anger are reflected in them. The authors state “it is in dissent that emotion is most apparent because dissent expresses a difference in opinion.” Marie-Claire Belleau & Rebecca Johnson, Faces of Judicial Anger: Answering the Call, 1 Eur. J. Legal Stud. 20, 22 (2007).Google Scholar

92 Examples are included from the Hungarian practice because it was the object of empirical research carried out by the Author in 2006–2008 during her PhD at the University of Florence (Italy). However, the results of this research have not yet been published in their entirety.Google Scholar

93 Alkotmánybíróság (AB) [Constitutional Court] Oct. 24, 1990, Decision no. 23/1990 (X 31) (Hung.) (Sólyom, J., Szabó, J., Zlinszky, J., Lábady, J., and Tersztyánszky, J., concurring) (Schmidt, J., dissenting).Google Scholar

94 Alkotmánybíróság (AB) [Constitutional Court] Dec. 9, 1991, Decision no. 64/1991 (Hung.) (Ádám, J., Herczegh, J., Kilényi, J., concurring) (Zlinszky, J., explanatory opinions) (Lábady, J., supplementary reasoning).Google Scholar

95 Alkotmánybíróság (AB) [Constitutional Court] Nov. 18, 1998, Decision no. 48/1998 (Hung.) (Lábady, J., Tersztyánszky, J., dissenting) (Ádám, J., concurring explanatory) (Holló, J., partly explanatory, partly supplementary).Google Scholar

96 Alkotmánybíróság (AB) [Constitutional Court] Sept. 3, 2002, Decision no. 37/2002 (Hung.) (Strausz, J., Tersztyánszkyné, J., dissenting) (Kiss, J., concurring supplementary) (then President of the Court Németh, explanatory). Declared that the violation of the Constitution by a provision of the Criminal Code penalizing homosexuality between a minor and an adult.Google Scholar

97 Alkotmánybíróság (AB) [Constitutional Court] Apr. 22, 1996, Decision no. 1079/H/1995 (Hung.). Also, common law judges sometimes use concurring opinions directed to litigants. Furthermore they also write concurrences to furnish lower courts with practical guidance, such as ways of distinguishing subsequent cases. Brennan, supra note 6, at 430.Google Scholar

98 Alkotmánybíróság (AB) [Constitutional Court] Feb. 16, 2004, Decision no. 827/B/2000 (Hung.).Google Scholar

99 Alkotmánybíróság (AB) [Constitutional Court] July 4, 2000, Decision no. 24/2000; Alkotmánybíróság (AB) [Constitutional Court] Jan. 16, 2001, Decision no. 2/2001 (Hung.).Google Scholar

100 See, e.g., Edward McGlynn Gaffney, The Importance of Dissent and the Imperative of Judicial Civility, 28 Val. U. L. Rev. 583 (1994), available at http://scholar.valpo.edu/vulr/vol28/iss2/5/ (last visited June 17, 2013) (reporting the study by an American scholar analyzing the personal relationship between Justices of the U.S. Supreme Court).Google Scholar

101 This was the case for example in relation to the Bush v. Gore (2000) judgment already mentioned above. See supra note 85 and accompanying text.Google Scholar

102 See supra Part C.II.Google Scholar

103 I mentioned all languages in which dissenting opinions can be found. There are no dissenting opinions for example in Italian, as the Italian constitutional judges are not allowed to write separately.Google Scholar

104 Indeed, there are examples of dissenting opinions in Europe which later became the opinion of the majority. See Katalin Kelemen, The Road from Common Law to East-Central Europe: The Case of the Dissenting Opinion, in Legal and Political Theory in the Post-National Age 118, 130 (Péter Cserne & Miklós Könczöl eds., 2011) (providing some examples from Eastern and Central European constitutional courts); Rörig & Guerrero Picó, supra note 20, at 23 (providing Spanish examples).Google Scholar

105 Translation by the Author. Piero Calamandrei, Elogio dei giudici scritto da un avvocato 274 (reprint 1989) (1935).Google Scholar

106 The question emerged from time to time in the Italian legal doctrine, culminating in the publication of a book by Saulle Panizza, professor of law in Pisa. See Saulle Panizza, L'introduzione dell'opinione dissenziente nel sistema di giustizia costituzionale (Giappichelli ed., 1998). The last seminar on dissenting opinions was organized by the Constitutional Court in Rome on 22 June 2009. The papers are available on the website of the court: http://www.cortecostituzionale.it/convegniSeminari.do (last visited June 17, 2013).Google Scholar

107 Panizza, , supra note 21; See also Lorenzo Luatti, Profili costituzionali del voto particolare. L'esperienza del tribunale costituzionale spagnolo (Giuffrè ed., 1995) (discussing Spanish practice from a comparative perspective); Le opinioni dissenzienti dei giudici costituzionali ed internazionali (Costantino Mortati & Giuffrè eds., 1964).Google Scholar

108 See supra Part D.II.Google Scholar

109 See his dissenting opinion attached to an Opinion of the Constitutional Review Chamber of the Supreme Court on the interpretation of the Constitution of 11 May 2006, no. 3–4-1-3-06. Its English translation is available at http://www.nc.ee/?id=663 (last visited June 17, 2013).Google Scholar

110 See the Czech Constitutional Court's decision of 3 May 2006 on the European Arrest Warrant from which three judges dissented (Justices Eliška Wagnerová and Vlasta Formánková wrote a joint opinion). The English translation of the judgment (including the dissenting opinions) is available at http://www.concourt.cz/view/pl-66-04 (last visited Mar. 19, 2012).Google Scholar

111 Article 34.4.5 of the Irish Constitution, for example, explicitly excludes the possibility of publishing separate opinions in relation to the constitutional review of a statute. Article 26.2.2 prohibits the publication of dissent also in cases of preventive review (when the Supreme Court decides on the constitutionality of a bill referred to it by the President).Google Scholar

112 The last example is Lithuania, which introduced dissenting opinions in 2008. See supra note 27 and accompanying text.Google Scholar