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32 J. Am. Jud. Soc. 104 (1948-1949)
The Dissent: A Safeguard of Democracy

handle is hein.journals/judica32 and id is 106 raw text is: JOURNAL OF THE AMERICAN JUDICATURE Sociry[ and handed it as a reward to the servant who had made the profit of ten talents, and then said: Unto him that hath there shall be given, while from him that hath not there shall be taken even that little which he hath. The way to acquire more strength is to employ to the utmost all of the qualities of mind, of character and personality which you possess. Never re- sort to weakness, deceit, deception or trickery. Never believe that your guilt will not be dis- covered. If you employ trickery or deceit, it may be that neither the judge on the bench or your opponent at the counsel table will discover your guilt, but your guilt will be discovered by a man of utmost importance to you-yourself. You will know your guilt and when you discover yourself doing something that is wrong, you will pay the penalty. You will forfeit your own self-respect. Throughout all of life you will have to live in your own company, and no law- yer is fit company for himself when he has lost his self-respect. Justice Oliver Wendell Holmes wrote: Pleas- ures do not make happiness and the root at once of joy and beauty is to put out all of one's powers to a great end-to hammer out as compact and solid a piece of work as one can, to try to make it first-rate, and to leave it unadvertised. I express the sincere hope that those of you who enter upon the practice of the law will find here in the profession the happiness which every human being seeks. I hope that the practice of law will operate as a magnet and draw from you your utmost strength-of mind, of char- acter and of personality. It is in the perform- ance of work which exacts the best that we have that we find the joy and beauty which con- stitute true happiness. pi The Dissent: A Safeguard of Democracy By WILLIAM 0. DOUGLAS All of us in recent years have heard and read many criticisms of the dissenting or con- curring opinion. Separate opinions have often been deplored. Courts have been severely criti- cized for tolerating them. And that is why I rise to their defense. About ten years ago when I took my seat on the bench, Chief Justice Hughes said this to me: I think you will find after you have been on the bench for a while that in a great ma- jority of the cases, perhaps in two-thirds of them, the judges will ultimately reach agree- ment and announce opinions that are unani- mous. But in at least a third of the cases, agreement will not be possible. In those cases there will be dissents-no matter how carefully the judges were chosen-whether one President or several Presidents selected them. Chief Justice Hughes spoke from a long ex- perience both at the bar and in the conference room. In these days of uneasiness and con- fusion what he said to me is important not only to judges and lawyers but to everyone. It Address by Mr. Justice Douglas of the Supreme Court of the United States before the Section of Judi- cial Administration of the American Bar Association, Seattle, Washington, September 8, 1948. is indeed only when the meaning of his words is clear that the true nature of the judicial process is brought home to the community. SEARCH FOR CERTAINTY Holmes, perhaps better than anyone either before or after him, pointed out how illusory was the lawyer's search for certainty. Law is not what has been or is-law in the lawyer's sense is the prediction of things to come, the prediction of what decree will be written by designated judges on specified facts. In lay- man's language law is the prediction of what will happen to you if you do certain things. This was the lesson Holmes taught; and every lawyer on reflection knows that it is sound. There are many reasons why this is so. No matter how clear and precise the code or other legal rule may be, the proof may be surrounded with doubt. And even though the proof is clear to the advocate, the credibility of the wit- nesses may raise serious questions for judge or jury. Uncertainty is increased when new and difficult problems under ambiguous statutes arise. And when constitutional questions emerge, the case is, as we lawyers say, at large. For the federal constitution, like most [VOL. 32

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