Law Quarterly

The Value and Role of Supreme Court Dissents

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In a time in American political and legal life, when the deep and often long-lasting impact of the Supreme Court is at the nexus of contentious, and even vitriolic, debate over core Constitutional issues, the nature and history of Supreme Court dissents is worthy of consideration. Dissenting opinions can be minority views that, through the power of their reasoning and arguments, lay the groundwork for later majority opinions and new legal precedent. Historically, this has given rise to the best and most influential dissents

Of particular historical note are the widely acknowledged and revered dissenters of the Supreme Court, Oliver Wendell Holmes Jr. and Louis Brandeis. Both justices emphasized judicial restraint, taking exception to the majority in a period of a staunchly conservative Supreme Court and the widespread judicial philosophies it embodied. Holmes wrote the famous dissent in Lochner v. New York (1905), opposing the Court’s use of “liberty of contract” to strike down a state law regulating harsh working conditions. Brandeis laid the groundwork for the right to privacy in his dissent in Olmstead v. United States (1928), arguing that wiretapping without a warrant violates the Fourth Amendment.

While the Supreme Court appears to be taking a decidedly conservative turn, which may be longer lasting than the Court under Earl Warren (e.g., Brown v. Board of Education (1954), outlawing segregation; Cooper v. Aaron (1958), requiring states to comply with federal law; and Katzenbach v. McClung (1964), upholding the Civil Rights Act of 1964.), It is important to note that these decisions were unanimous and there is jurisprudential and precedential value in the Court seeking to reach unanimity on such significant issues of American legal principles.

John Marshall, the first Chief Justice of the Supreme Court and perhaps most appropriately acknowledged for establishing the concept of the Court as a co-equal branch of government ( Marbury v. Madison (1803), Fletcher v. Peck (1810), and McCulloch v. Maryland (1819) ), was critical of dissent and believed that unanimity was a value to be sought. In a 34 year career on the Court, he dissented only 7 times. Yet after his death, his surviving colleague, Justice Storey, wrote several important dissenting opinions referencing Marshall’s more national and federal beliefs as the Court became more oriented to states’ rights and limiting Congressional powers.

This road may be seen culminating in Dred Scott v. Sandford (1857), where the Court held that a slave was not a citizen and lacked the standing to sue for his freedom. Justice Benjamin Curtis filed a dissent that has been called “one of the great masterpieces of constitutional opinion-writing,” completely refuting the Court’s reasoning and disproving its assertions of fact. Further, his lengthy historical analysis of laws governing citizenship are seen as laying the foundation for the Civil rights Act of 1866 which explicitly overruled the Scott decision. Yet, earlier in his career as a Massachusetts legislator, Curtis had defended the Fugitive Slave Act as valid under the Constitution and never advocated for full equal rights for Blacks.

A key motivating factor for Curtis’ dissent was his belief that Chief Justice Tanney was seeking to advance his personal political beliefs rather than seeking a defensible legal analysis. It is this distinction that is important in assessing the dissenter’s purpose and the dissent’s value.

For example, there is a view that in these increasingly polarized political times, the Court’s dissents reflect more personal and vitriolic motives. Some point to former Justice Scalia who, in his dissent in the case that struck down state laws prohibiting Gay marriage, begins with “I write separately to call attention to this Court’s threat to American democracy.” In prior dissents on cases involving Gay rights, Romer v. Evans (1996) and Lawrence v. Texas (2003), Scalia’s personal views on homosexuality were in clear display. With Justice Clarence Thomas, his dissents often reflect a very personal view of American judicial and legal history. His dissent in Obergefell strongly questioned the idea that the Constitution encompasses rights like privacy and marital autonomy. The Court had rejected this position decades ago in Griswold v. Connecticut (1965) and Loving v. Virginia (1967).

One example of a sometimes lonely dissenter from the other side, especially in his later years on the Court, is William O Douglas. In his over 36 years as a Justice, Douglas wrote over 500 dissents, often as the fiercest proponent of the most expansive view of individual rights and press freedom under the Constitution. In a case like Terry v. Ohio (1968), involving the Constitutional scope of police in stopping and questioning, Douglas was the lone dissenter advocating a view that would have virtually every action or encounter with the police be bounded by a the most expansive protections of the 4th and 5th Amendments, and stating that if the police are to have rights to question and stop someone, a Constitutional amendment should be required. Often at odds with even other liberal Justices, Douglas represented a belief in natural law of freedom that, while celebrated by some, would not lay the foundation for the kind of Constitutional reach a majority of Justices would follow regardless of their placement on the political spectrum.

More recently, the dissent of Justice Sonia Sotomayor, joined by Justice Ginsburg, in Trump v. Hawaii (2018), the case deciding Trump’s travel ban from designated Muslim countries, represents the mix of passion, facts, and legal analysis that affirms basic Constitutional principles in a way that can be built up by later decisions. In that dissent, Justice Sotomayor wrote,

The United States of America is a Nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neutrality in the First Amendment. The Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a ‘total and complete shutdown of Muslims entering the United States’ because the policy now masquerades behind a façade of national-security concerns.

The role of a Supreme Court dissent can be a powerful one in shaping views and later decisions, or it can be an angry or lonely cry that defines the dissenter rather than seeking to establish legal principles for broader adoption over time. If the Supreme Court is to maintain its vital position as a co-equal branch of government and not just another politically partisan entity, the examples of dissent set by Justices Storey, Holmes, Brandeis, Sotomayor, and Ginsburg may show the way.

By Guest Contributor Glen Moss Esq.

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