If you like the Scalia opinion Lucas Morel links to, you’ll love this. On the Seventh Circuit, Judge Frank Easterbrook has just invented a new kind of separate opinion. Not "concurring," not "dissenting," but "dubitante." Strip the polite veneer off, and Easterbrook is slamming the Supremes, and particularly Justice O’Connor, for being so unprincipled in free-speech cases that inferior federal judges have no clue what to do. The last couple of sentences are a real hoot:
Given McConnell, I cannot be confident that my
colleagues are wrong in thinking that five Justices will go
along. But I also do not understand how that position can be
reconciled with established principles of constitutional law.
(Thanks to Stuart Buck’s The Buck Stops Here.)
Dubitante isn’t new. Here’s a very famous Supreme Court opinion from the 1940s where one Justice issues a dubitante opinion. It is certainly rare to see it these days, though, since it requires a very intellectually honest jurist to admit he can’t logically refute a position but disagrees with it anyways.