Glenn Burhans Jr.: O civility, where art thou?

The Florida Supreme Court recently invalidated the state’s congressional districts map, finding it had been drawn with unconstitutional intent to favor the majority party and incumbents. This landmark decision is the first to determine whether newly drawn legislative districts comply with the Fair Districts Amendment as passed by voters in 2010 to remove partisan gerrymandering from the redistricting process.

The Legislature now has less than 100 days to redraw the districts in compliance with the ruling, or risk having the map set by the court.
The decision is a Big Deal.

It is noteworthy for another reason: Illustrating a shift in our judicial discourse and the proper place, if any, of sharp-elbowed dissent.

Appellate courts communicate through opinions. Where unanimity of the judges is lacking, a “majority” opinion states the court’s ruling and sets forth the law. Judges express disagreement in a “dissenting” opinion, laying out substantive argument as to why they are right and the majority is wrong. Dissenting opinions are not binding, but they can be persuasive authority, at times finding their way into majority opinions in later cases.

Dissenting opinions that later become the majority view share certain qualities such as rigorous legal analysis, sound reasoning, and persuasiveness; in short, they are credible. Such credibility has traditionally included the ability to “disagree agreeably.”

Justice Thurgood Marshall spent much of his career on the U.S. Supreme Court doing just that. His passionate dissents were vigorous and well-reasoned, but never demeaning or lacking respect for the majority. Current Chief Justice John Roberts applies a respectful and deft touch in expressing disagreement, as demonstrated in the recent gay marriage case.

One of the most famous dissenting opinions is that of Justice John Marshall Harlan in Plessy v. Ferguson, the notorious case where the U.S. Supreme Court sanctioned racism in the form of “separate but equal” segregation. Given the divisive effect of that decision (and the stain it cast upon the court), Harlan could have shamed the majority with a caustic dissent. Instead, he logically dispatched the cases relied upon by the majority as inapplicable for failing to account for changes in the law and societal attitudes about how people should be treated. He famously declared, “Our Constitution is color-blind … all citizens are equal before the law.”

Nearly 60 years later his lone dissent informed the majority opinion in Brown v. Board of Education, which overturned Plessy. Was his view adopted because of the eloquent restraint he showed or would a more combative (if not histrionic) posture have hastened the end of Plessy? The trend seems to favor the latter, as seen in the dissents in the recent Florida redistricting case, League of Women Voters v. Detzner, and two cases before the U.S. Supreme Court involving the Affordable Care Act and gay marriage.

It is one thing to argue that a ruling is “unprecedented,” “lacking support,” or – egad – “without merit.” However, it is another to rail that it is “fallacious,” “fabricated,” “contrived” or “jiggery-pokery” (meaning deceitful or dishonest). The former suggests a lack of legal predicate; the latter suggests deceit and ill motive. It strains credulity, though, to believe that a majority of either court simply “fabricated” their ruling or acted deceitfully.

Here’s why: Lawyers do not rise to the U.S. Supreme Court or the Florida Supreme Court by accident. Politics aside, they have significant knowledge, skill and training, and represent some of the best legal minds of our (or, for some, any) time.

In the recent Florida case, the majority responded to the “dissent’s attacks” as “extravagant,” a “barrage of epithets,” and “overblown” “derisive criticisms.” Both sides raised important legal issues worthy of serious examination, but were they lost in the jousting? Does this rough-and-tumble exchange enhance the debate, or is it a distraction, perpetuating a negative view of the judiciary and playing into the hands of those who would weaken the courts?

I am reminded of Lenny Bruce, the ground-breaking comedian who wove coarse language into his routines. His choice of language was not gratuitous; he was making a point and upending social conventions. Bruce was provocative and influential far beyond the realm of stand-up comedy. He forever changed society’s acceptance and use of vulgarity across the range of popular creative expression: literature, music and movies. The resulting profligate use of such language, however, has diminished its meaning and effect.

One wonders whether judicial analysis is similarly diminished by the more colorful, if not histrionic, opinions we see today.

Vigorous examination and debate is crucial to the vitality of our jurisprudence.  Yet, danger lies in the misperception that the strength of a judicial opinion is measured by its capacity to demean the opposition. This is so because the resulting message is that the rule of law, and the courts interpreting it, need not be respected or followed. Such a view is fatal to our democracy. Let us hope that the current trend does not lead us there.

Based out of Tallahassee, Glenn Burhans is a shareholder in the law firm of Stearns Weaver Miller Weissler Alhadeff & Sitterson P.A. His practice includes constitutional, election and ethics law, and he represents clients in complex litigation and appeals throughout Florida and nationwide. He can be reached at [email protected].  Column courtesy of Context Florida.