On Monday, the Sixth Circuit handed down a decision in United States v. Jeffries , which includes what appears to be the first “dubitante” opinion ever authored by a Sixth Circuit judge. (According to Lexis at least, and, for the record, a dubitante opinion did appear several years ago in a Sixth Circuit case, but it was authored by a visiting judge from outside the Circuit). For anyone who does not know what a dubitante opinion is, and I counted myself among that number until this week, it is an opinion in which a judge is doubtful about a legal proposition but reluctant to declare it wrong (according to legal dictionaries). Interestingly, Judge Sutton both authored the unanimous opinion for the panel in Jeffries, but also authored a separate dubitante opinion effectively questioning the result that the court had just reached. Judge Sutton’s lead opinion chronicles an interesting prosecution of an individual for posting a music video on YouTube that prosecutors argued constituted a threat to a judge, and the court concludes that because the video was sufficiently threatening, the conviction should be affirmed. However, in Judge Sutton’s separate dubitante opinion, he questions the genesis of the line of cases that the court was compelled to follow and suggests that, years ago, the courts simply got it wrong in developing the jurisprudence around this particular criminal statute: “When some law-making bodies ‘get into grooves,’ Judge Learned Hand used to say, ‘God save’ the poor soul tasked with ‘getting them out.’” One case built upon the prior one without sufficient scrutiny, according to Judge Sutton, thereby constraining future courts.
A quick search on Lexis reveals a number of dubitante opinions in other circuits over the years. For some reason, the Sixth Circuit has never had one, at least authored by one of its own judges. Armed with this knowledge, you can now impress all of your friends at cocktail hours regarding what a dubitante opinion is, and its history within the Sixth Circuit.