My relatively firm belief -- although I admit that it's perhaps idiosyncratic -- is that one should tailor one's dissent at least a little bit to the identity of your colleagues in the majority. For example, if you believe (for whatever reason) that the people who outvoted you are cold-hearted, manipulative bastards who know that what they're doing is wrong but are drunk with the knowledge that they can do it anyway, your dissent can (and maybe even should) be totally mean. And let me assure you, by the way, that this happens; indeed, that there are some judges -- I'll omit the names, but they ain't hard to guess -- who are infamous in this regard. By contrast, when you think your colleagues simply get it wrong, but are trying their best, you're usually pretty nice, even though you disagree (and sometimes vehemently disagree) with them. Now, the term "respectfully" is totally overused (and in, "I respectfully dissent"), and indeed often is used to mean exactly the opposite of respect. But I think you really should be fairly nice when your colleagues are the type of people whom you respect and who are misguided in this particular case notwithstanding their best efforts and their good hearts.
Let me apply this general principle more concretely; for example, in this case. The majority opinion is written by Betty Fletcher. Now, whatever one might think about Judge Fletcher, she's definitely not a jerk, much less a manipulative bastard. Rather, she's assuredly one of the nicest and most reasonable members of the bench, and I think pretty much everyone would agree with that assessment. Can she be wrong? Sure. Can you think her judicial philosophy is misguided? Of course. But she's undeniably doing what she thinks is right, and her thoughts in that regard are sufficiently straightforward and right down the middle that you just can't think of her in really derogatory terms. You just can't. And everybody knows that.
Which is why Judge Bea's dissent here -- and Judge Fletcher's reaction to it -- are pretty unusual. You often see marginally testy exchanges between opinions, or at least it's hardly a surprise when you do. But I don't ever recall seeing someone get into it like this with Judge Fletcher, of all people. Nor do I recall a previous opinion of hers that was so pointedly responsive to the dissent. This is a much, much, much more personal exchange that I've heretofore seen from Judge Fletcher. Which says something, I think.
The entire dialogue between Judge Fletcher and Judge Bea takes up 65 whole pages, and you really have to read the whole thing to get a flavor for what's going on. Plus, even if you do, there's a fair amount of superficial courtesy expressed by both sides, so it's easy to overlook the overall tenor. But if you're used to reading the typical opinion by Judge Fletcher, you definitely notice the difference here. Take a look at footnote 4, for a very slight example, where Judge Fletcher says that Judge Bea "accuses us of taking these responses out of context." Or, more significantly, on page 14247, where she includes the following -- somewhat striking (especially for her) -- paragraph in the text: "Before concluding, we feel that we must briefly respond to the dissent's accusations that we are distorting the facts, introducing a subjective and 'rudderless' standard into the law, and inviting 'volumes of litigation' by encouraging defendants to concoct conspiracy theories about their defense attorneys." Yikes. One gets a keen sense that Judge Fletcher is not typically confronted with such bold critiques, and also doesn't particularly like it. And, after all, who would? And, thereafter, when she responds to these objections by arguing that Judge Bea attacks a "straw man", that his accusations "rel[y] on a highly selective reading of our opinion," and that he has "ignore[d]" and "mischaracterize[d] the opinon, she is using language that is much, much, much harsher than what I'm used to hearing from her.
Now, on Judge Bea's end, as you can probably tell from Judge Fletcher's response, he's hardly pulling punches here. Sure, he ends his dissent with a superficial paean to his colleagues -- one that could actually be read as a backhanded slam anyway -- but that's only after about three dozen really harsh comments. Which, again, we are completely used to seeing in response to, say, a Judge Reinhardt or Judge O'Scannlain opinion. But Betty Fletcher?! Come on.
The exchange you see her is not something you're going to see every day. Or even every year. Or even every decade. So if only for that reason -- as well as, perhaps, the importance of the underlying holding -- it may well be worth slogging through this very long and detailed opinion. I was glad I did.
