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A Better Partnership
May 12, 2009

Chief Justice Kelly on unanimity

During the 2007-2008 Term, the Court resolved slightly more than 10% of its cases on a unanimous basis.' Editorial boards throughout the State have taken note.' With that background, OCJ Blog asked Chief Justice Kelly about what value she places on unanimity within the Court:

OCJ Blog:' During the 2007-2008 term the Court heard oral arguments' in 88 cases, but reached a unanimous result in a' published decision in 11 cases.' What value do you as a justice, and now as chief justice, place on unanimity'' '

CJ Kelly:' Well, I place a great value on it, and I strive to bring my colleagues into a unanimous position on cases.' I' remember when I was practicing law I used to really criticize the Supreme Court in particular for its' splintered decisions, but now that I'm on the Court I' understand a little better why that happens.' And one fact is -- and it's true in the case that you had before us, that where you have a multiplicity -- the most recent one.' The Tomecek . . .

OCJ Blog:' ' Tomecek versus Bavas.

CJ Kelly:' Bavas case, uh-huh.' There were a number of' important issues.' If you have multiple important issues for seven people to decide, the likelihood that' you're going to get a unanimous decision of seven -- on all those issues among seven is not very high.' And so' it's not surprising in many ways that there are so few unanimous decisions, as troublesome as it is to the' bench and Bar to have to sort those out.' And I'm very sympathetic with that, but strong differences in philosophy among justices certainly can make it' impossible for us to be unanimous on many difficult cases.

OCJ Blog:' And if I may on follow-up to that, when do you for yourself consider it appropriate to write a dissenting' opinion'

CJ Kelly:' Well, if I can't sign the majority opinion then I feel it's necessary to explain why.' So either -- at that' point either I sign someone else's dissenting statement or opinion or I write my own.' Or I write a concurring' opinion, which makes a distinction in the reasoning without changing the result.' But I do feel that even' with respect to orders people are entitled to know why justices take a position, not just simply what their' position is.' So I avoid simply signing on the left, as we say, showing that I concur in result only.' I avoid' it whenever I can.

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