The Dubitante Opinion

The 2004 Term of the United States Supreme Court resulted in 203 full opinions written, including 61 concurrences and 63 dissents. Judicial use of these three basic opinion types, the majority, concurring and dissenting opinions or variations thereof (e.g., concurring in part and dissenting in part) has been the norm in the Court and lower federal courts over recent decades. Yet, another type of opinion exists - the dubitante opinion. Judges rarely write dubitante opinions or use the term, and informal polling suggests not many legal scholars are aware of the practice. This short Essay endeavors to shed some light on the use of the term dubitante in judicial opinions and spark discussion as to the merits of the dubitante opinion - What is a dubitante opinion? When was the term first used, and how often is the term used? Who uses it and how? What are the consequences of its use?