A spectrum of collegiality

The “principle of collegiality” or just “collegiality” is put in quotes throughout this paper when referring to the unique approach to decision-making on the Italian Constitutional Court. It is utilized as a term of art reflecting a form of decision-making that requires collective decisions without concurrences or dissents, giving the appearance of unanimity. But as noted in the introduction, it does not require unanimous or anonymous decisions. The author of an opinion, typically the assigned judge-rapporteur, is clearly noted and recognized in the decision and in the identification of the case on the Court’s website. So while the requirement of reaching a decision in secrecy and publishing a single decision of the Court lends a “black box” element to the Court’s decision-making, the recognition of an author provides at least a tiny and very important window into an otherwise entirely secret and collaborative process.

I call attention to this because it suggests another element in a range of discrete and interchangeable elements when it comes to the process of crafting, writing, and publishing decisions. There are choices beyond the basic separate opinions or no separate opinions dichotomy. In terms of analyzing collegiality more generally we can look at the process of choosing which cases to hear, the process of arriving at a legal conclusion, the rules or norms regarding writing decisions, the identification of the opinion writer, and the rules regarding the publication of those decisions. All of these elements can contribute more broadly to questions or concerns about the collective decision-making of a constitutional court. In combination they can be placed on a loose spectrum of collegial decision-making. The chart below (Fig.1) captures only a small segment of these elements.

Least Collegial Most Collegial

Seriatim

Seriatim

Majority/

“By the

Single

“By the

opinions

opinions

Plurality

court” or

majority

court” or

Publicly

Publicly

opinions

per curiam

opinions

per curiam

authored

authored

Attempt to

opinions

Publicly

opinions

Without

With

reach a single

Majority

authored

Single

conferencing

conferencing

majority

decision is

majority

opinion

or

and

decision

anonymous

decision

No authorial

collaboration

collaboration

through

Separate

No

attribution

conferencing

publicly

additional

and

authored

independent

collaboration

opinions

decisions

Publicly

permitted

permitted

authored

(“Principle

Separate

of Collegiali

opinions permitted

ty”)

Let’s begin at the end of the spectrum furthest from the “principle of collegiality” - a system of independent seriatim decisions that are the product of equally independent, non-collaborative analysis. To my knowledge, there is no current supreme or constitutional court that operates without some form of collaborative discussion and analysis, but there is a wonderful historic example of this in the early Supreme Court of Canada. That court produced seriatim non-collaborative opinions partly from tradition, but also as a matter of convenience. The justices were drawn from different regions and only rarely met together as a single bench. They operated completely “independent of each other rather than holding conference”.[1] According to the authors of a recent book on, among other things, collegiality in the Supreme Court of Canada, “The fact the court did not harmonize in its judgments may partially explain its lack of legitimacy at the time”. The early years of the Supreme Court of Canada are generally considered to be a failure.11

It’s worth noting that the U.S. Supreme Court also began in the tradition of seriatim opinions, with no process of conferencing or collaborative analysis. In 1801 Chief Justice John Marshall single-handedly altered this tradition, arguing that the Court would be stronger if it issued plurality opinions, speaking with one voice as much as possible.[2] Both of these examples provide interesting comparative support outside the constitutional court tradition for the “principle of collegiality” in the early years of the Italian Constitutional Court.

Moving through the spectrum, the UK Supreme Court provides a high-profile example of a court that still frequently follows the tradition of seriatim opinions, although with the added benefit of conferencing. Certainly there is more collective discussion and collaboration than might have been the case in previous generations, and the Justices are encouraged to publish plurality or majority decisions when appropriate. But an emphasis on the individual responsibility of each Justice and a desire to produce the widest possible range of legal ideas has kept the UK Supreme Court firmly on the left side of this spectrum. Although it should be noted that the proliferation of separate opinions does not necessarily mean there is a higher level of dissent. Indeed, the UK Supreme Court frequently has a higher rate of unanimous outcomes than other common law supreme courts. So the justices more frequently agree on the final judgment, but regularly write separate opinions expressing their agreement.

The majority of supreme and constitutional courts sit in the middle of this spectrum, most of the time. They operate with no formal limitations on the publication of separate opinions and most opinions are publicly authored. Both dissents and concurrences are permitted.[3] Clear majority decisions are preferred, but plurality decisions in which there is no single clear legal opinion are not unusual, at least that is certainly the case in the United States. While the absence of rules prohibiting separate opinions, combined with a preference for unanimous or at least clear majority decisions when possible, provides a shared set of norms across the U.S./European divide, European constitutional courts are different in that they rarely make public the internal voting on the court1' and they “exert more effort to reach unanimity” than their American counterpart.

There is a strange tension between the next two categories along the spectrum. First is the category of anonymous majority opinions that permit authored dissents and concurrences - an approach that has been used in some high-profile American cases. Bush v. Gore was a per curiam decision but it included one concurrence by Chief Justice Rehnquist and four separately authored dissents. The “Pentagon Papers Case”, was a narrowly crafted per curiam decision but each of the nine justices wrote separate opinions - six concurrences and three dissents - articulating different reasons. Authored dissents actually occurred in almost 50 percent of all per curiam decisions of the Supreme Court from 1946 to 2011. This puzzling category can be juxtaposed to the approach of the Italian Constitutional Court that requires authored, as opposed to anonymous, collective decisions, but prohibits separate opinions, an approach also followed by a small handful of other European constitutional courts. Given the controversy generated by a decision like Bush v. Gore, the Italian approach is evidently more collegial than anonymous opinions with dissents and concurrences, but the per curiam status of the majority decision does give it a gloss of baseline agreement.

At the far end of the spectrum is a single unanimous anonymous decision “by the court”. This is a category the Canadian Supreme Court uses with some regularity when it wishes to emphasize the importance of a decision. Such decisions were rare prior to Chief Justice Bora Laskin in the 1970s and increased dramatically after the passage of the Canadian Charter of Rights and Freedoms in 1982.[4] Since that time they have served as an important decision-making tool in very high-profile cases. Indeed some of the most important Charter cases have been “by the court”, including cases regarding minority language rights, fetal rights, Quebec secession, gun control, extradition when execution is a possible penalty, torture, same sex marriage, physician-assisted suicide, and a range of aboriginal rights cases. 24 It’s interesting that the Court chooses this approach when it feels it’s in the spotlight. This is in contrast to the US Supreme Court that typically opts for unanimous per curiam decisions with no dissents or concurrences when the matter is simply “judicial housekeeping”, routine, or unimportant. 2

More broadly speaking the Canadian Supreme Court has a relatively high level of unanimity in its decision-making, hovering around 60 percent of all cases compared to approximately 40 percent in the U.S. Supreme Court. There are a range of possible structural and procedural reasons for these differences between two otherwise similar common law supreme courts, but many argue that the Canadian Supreme Court is indeed “more oriented towards consensus in decision-making”. In a series of interviews with justices in the McLachlin Court, “ [s]everal justices indicated that the current chief justice prefers to have the court speak with one voice and encourages justices who express initial differences to try to work them out if possible”. Collegiality rather than ideology appears to be an important decision-making influence.

The Canadian reliance on more frequent unanimous and “by the court” decisions may be connected to the power-sharing dynamics of the Court. The arbitration function of the Court, deciding matters that reflect the underlining divided nature of the country’s broader institutional and consoci-ational democratic model, requires a model of decision-making that embraces consensus.50 Unlike other stronger power-sharing courts, for example the Constitutional Court of Belgium, the Canadian Court is not required by its governing rules to reach consensus in its decision-making, but the tendency to do so is a strong internal norm, central to its desire to achieve a high level of legitimacy.

The purpose of providing a quick glance at all these options is to introduce a few more ideas and examples into the discussion. The debate in Italy, as Professor Tega has chronicled, seems to focus first and foremost on permitting separate opinions. But it would be interesting to hear more about some of the finer details regarding, for example, authorship and publication. If the introduction of separate opinions raises concerns about external independence and the personal perspective of judges eclipsing the status of the court, might anonymous dissents remedy this? Professor Tega mentions in passing that anonymity in dissents has been an important part of the Italian Constitutional Court debate going back to the early proposals by Costantino Mortati. Additionally, it was part of the proposed rule changes that were voted down by the Court in 2002 and 2010. According to Professor Tega’s presentation of her chapter at a 2018 workshop, there is no real precedent for anonymous decisions in Italian judicial decisionmaking, and yet the idea was important enough to appear in these proposed rule changes. It would be interesting to know more about the impact of suggested anonymity on the “collegiality” debate. The use of anonymous decisions, whether in dissents, majority decisions, or in opinions of the

1

D.R. Songer, S.W Johnson, C.L. Ostberg, M.E. Wetstein, Law Ideology, and Collegiality: judicial Behaviour in the Supreme Court of Canada, supra, note 9 at 91.

2

See S. GRAZIADEI, Power Sharing Courts, in 3(1) Contemporary Southeastern Europe 66 (2016).

3

>0Id. 86.

  • 4
  • 51 D.R. Songer, S.W. Johnson, C.L. Ostberg, M.E. Wetstein, Laic Ideology, and Collegiality: judicial Behaviour in the Supreme Court of Canada, supra, note 9 at 153-157.
  • 5
  • 52 Anonymous dissents have been a tradition in the Greek courts. K. KELEMEN, Dissenting Opinions in Constitutional Courts, supra, note 2 at 1349.

court as a whole, adds an interesting twist to discussions about court legitimacy and the weight of particular legal decisions.

Similarly, might the publication of dissents at another time, in something like a yearly chronicle of additional opinions address some of the concerns about destroying the current benefits of “collegiality?” This is the approach of a handful of Central and Eastern European constitutional courts.33 It also appears to be happening in an ad hoc fashion on the Italian Constitutional Court with some judges opting to make public their views about specific legal decisions either after the end of their term on the Court, or in some cases even during their tenure.34 Reactions to some of these secondary considerations in the debate over “collegiality” might add more complexity to the overall analysis.

  • [1] D.R. Songer, S.W. Johnson, C.L. Ostberg, M.E. Wetstein, Law Ideology, and Collegiality: judicial Behaviour in the Supreme Court of Canada, Montreal, McGill-Queen’s University Press, 2012, 20. 2 Id. 19.
  • [2] M. 18-20. 2 R. ROTUNDA, The Fall of Seriatim Opinion and the Rise of the Supreme Court, Verdict: Legal Analysis and Commentary from Justia, 9 October 2017. Available at https://verdict.justia.com/2017/10/09/fall-seriatim-opinions-rise-supreme-court, last visited February' 20, 2020. See also, M.T. HENDERSON, From Seriatim to Consensus and Back Again: A Theory of Dissent, in John M. Olin Law & Economics Working Paper, No. 363, 1 (2007), 21-24. 3 15 Lady HALE, Judgment Writing in the Supreme Court, UK Supreme Court Blog, 25 October 2010, available at http://ukscblog.com/judgment-writing-in-the-supreme-court-bren da-hale/ last visited February 20,2020 (noting a trend toward more “plurality or effectively plurality judgments” but endorsing the tradition of separate opinions provided there is no “grandstanding or self-indulgence”). 4 See Dissenting Opinions in the UKSC, UK Supreme Court Blog, 19 August 2010, available at http://ukscblog.com/dissenting-opinons-in-the-uksc/ last visited February 20, 2020 (detailing a comparative study of dissents in common law jurisdictions).
  • [3] It is worth noting that at times these separate decisions push more toward the seriatim end of the spectrum where there is no clear majority opinion. In the U.S. See, e.g., Van Orden v. Perry 545 U.S. 677 (2005) The case concerned the constitutionality of a large display of the Ten Commandments outside the Texas State Capitol. The Court concluded that the Establishment Clause did not prohibit the display but the six different opinions - an opinion of the court, three concurrences and two dissents - led Chief Justice Rehnquist to quip when announcing the decision “I didn’t know we had that many people on our court”. R. ROTUNDA, The Fall of Seriatim Opinions and the Rise of the Supreme Court, supra, note 12. There is no clear majority decision in that case. 2 Sec J. SPRIGGS II, D.R. Strauss, Explaining Plurality Decisions, in 99 Georgetown L.J. 515 (2011). 3 K. KELEMEN, Dissenting Opinions in Constitutional Courts, supra, note 2 at 1362. 4 Id. 1365. 5 531 US 98 (2000). 6 New York Times v. U.S. 403 U.S. 713 (1971). 7 .See M.C. GlZZI, S.L. WASBY, Per Curiams Revisited: Assessing the Unsigned Opinion, in 96 Judicature 110 (2012), 112. 8 In a Time magazine survey of 50 law professors, “many professors were critical of...
  • [4] Bush v. Gore (2000) ...” A. SACHS, The Worst Supreme Court Decisions Since 1960, Time, 6 October 2015. Available at http://time.com/4056051/worst-supreme-court-decisions/ last visited February 20,2020. 2 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. 24 For a full list of these cases since 1980 to the present see https://en.wikipedia.org/wiki/ By_the_Court_decisions_of_the_Supreme_Court_of_Canada. 25See M.C. GlZZI, S.L. WASBY, Per Curiams Revisited: Assessing the Unsigned Opinion, supra. note21, 110, 112-114. 3 B. ALARIE, A. GREEN, Should They All Just Get Along? Judicial Ideology, Collegiality, and Appointments to the Supreme Court of Canada, in 58 U. New Brunswick L.J. 73 (2008), 78; See also Supreme Court of Canada Statistics 2007-2017. Available at https://www.scc-csc.ca/case-dossier/stat/pdf/doc-eng.pdf last visited February 20,2020. 4 Id. 78.
 
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