Why do dissenting justices author dissenting opinions in a Supreme Court case? What purpose does it serve?
Thanks,
Rob
Because they can? You just want them to silently disagree?
Because they were attempting to sway their colleagues and now hope to saw a future court, for one thing, and because they are registering their disagreement with a decision by the court on which they sit with which they disagree. The point that today’s dissent may become tomorrow’s majority opinion is one that should not be missed:
The sad thing in that instance is that Harlan’s dissent in Plessey rests on firmer constitutional ground than the majority opinion in Brown, though that is likely heading off into GD territory.
If this is a personal view, Mr Moto, I’d be interested in seeing it explored in GD, and would welcome your starting such a thread. If, on the other hand, it derives from some reading of commentary on the subject, I’d welcome the quote, which I think would be appropriate to GQ on the subject of constitutional inerpretation and dissents.
I’d forgotten Harlan’s dissent in Plessy. Good stuff! It reminds me of this excerpt from a 1963 civil rights speech by President Kennedy:
One hundred years of delay have passed since President Lincoln freed the slaves, yet their heirs, their grandsons, are not fully free. They are not yet freed from the bonds of injustice. They are not yet freed from social and economic oppression. And this Nation, for all its hopes and all its boasts, will not be fully free until all its citizens are free. We preach freedom around the world, and we mean it, and we cherish our freedom here at home, but are we to say to the world, and much more importantly, to each other that this is the land of the free except for the Negroes; that we have no second-class citizens except Negroes; that we have no class or caste system, no ghettoes, no master race except with respect to Negroes?..
This is a superb answer. I add only the small point that the lead opinion writers (and the concurrence writers) know the content of the dissent before the opinion is announced and will often address points raised in the dissent. Thus a dissent can help put the ratio decidendi of the lead opinion in high relief.
Additionally, the dissent often tries to shape how the majority opinion will be read. More than a few SCOTUS decisions cite the dissents from previous opinions to understand what the majority intended. Often, this backfires since the dissent exaggerates the effect of the majority opinion.
It is only a slight exaggeration to say that the history of the Supreme Court in the 20th century consisted of a long string of decisions reversing previous decisions of the Supreme Court.
Whatever certain factions say, historians repeatedly demonstrate that the Constitution is a living document subject to interpretation wrought by the understanding of contemporary society. Plessey v Ferguson was inevitable in 1896 no matter what the law or Constitution said. Brown v. Board of Education was not inevitable in 1954, but would have happened shortly thereafter because society demanded that interpretation. We know this to be true because neither society nor the Court ever goes backward. If in the unlikely event that Brown v. Board of Education was bad law, it will still never be overturned because society has utterly rejected the concept of separate but equal. Some individuals fought for that concept even before the Court’s decision and some members of the Court were ready to vote to repudiate Plessey even before 1954. This shows up in minority dissents. And the dissents gave both hope and direction to the forces who wanted to overturn the ruling.
Because Justices are human, it works the other way as well. Some cling to opinions and beliefs long after their peers and the greater society have rejected them. Those beliefs also show up as minority dissents. That’s their right, even their duty. But they are less influential. Why? Mr. Dooley once said that “the Supreme Court follows the election returns.” That’s always, as now, quoted out of context, but it’s true in two ways. One is that new presidents choose new Justices with congenial temperaments. The other is that no Justice lives in a vacuum. They are part of society. They read the same newspapers and books, talk to real world people, live and age in a world of change just like everybody else. Their opinions and worldviews modify and alter with the times. Some do so to a greater extent than others. As long as Justices as human the world cannot help but impinge.
Similarly, as long as split verdicts exist there can be no claim that the law or the Constitution is fixed and singly interpretable. Minority opinions are crucial underpinnings of the entirety of the reading of the country’s laws. They may be forgotten or they may have huge future consequences. Either way, they must exist.
What do you mean by this?
I mean that once rights are given they are never taken away.
Blacks will never have to worry about Jim Crow laws, child labor will always stay illegal, books won’t ever be censored, unions will always have to right to organize, contraception will stay available. All of these and many more were once rejected by the Court. Yet while the Court reverses many things rights are never among them, because society never reverses itself and takes advances away once won.
It the same thing as the reforms that the Progressives fought for 100 years ago once being considered too radical to ever be accepted but are now considered to be bedrock values that can never be questioned.
California therefore never passed Proposition 8, then? The Reconstruction never gave way to Jim Crow?
This is a hopeful, optimistic version of Whiggish history. It is borne out by the broad strokes of overall global history thus far (especially in regions that are now in the First World), but local and even regional histories over smaller spans of time directly contradict it.
First, “society” is never local or regional. Second, the two examples you mention were rights that were never truly given in the first place. [Insert several more points here.] Nth, of course I was giving large generalizations over large periods of time. As generalizations go, this one works exceptionally well.
I’ll explore it to a degree here.
Harlan’s dissent in Plessy, which can be read here, is a model of simplicity and a direct application of the 14th Amendment to the issue at hand. By contrast the majority opinion in Brown, while it overturns Plessy, doesn’t directly apply the 14th Amendment - it instead bases the decision in large part on a finding spelled out in Footnote 11 of the psychic harm caused to people by segregation policies. In this it is creepily reminiscent of Plessy, which justified state laws based on various “scientific” calculations of race.
Liberal and conservative commentators alike have noted this. I can provide a few links if necessary, but frankly the original opinions make this uncomfortable fact plain as day.
Well I guess this thread has gone down the GD crapper in a hurry. I’ll still try to answer the OPs question.
I am sure that some justices have used their dissents to say “Well once again my colleagues have demonstrated that they are nothing more than a horde of shaved apes.”
But rather than sour grapes, I think its more about trying to develop a body of legal scholarship for lack of a better phrase. Take a case like Kelo v. New London. While the court gave the states pretty wide latitude in eminent domain, it still left the decision to the states. A court in North Dakota can take a couple of points from the majority opinion and a few points from Justice O’Connor’s dissent in crafting an opinion that will apply in that state.
The historical derivation of the “majority” and “dissenting” opinions should be pointed out. At one time, less than 200 years ago, the justices of an appellate court all issued an opinion on the matter. There was no single opinion that was the “court’s” opinion. To figure out what the court was doing, you had to read all the opinions, and try to distill some common legal point out of them.
As time passed, justices started simply signing on to opinions of other justices. Pretty soon, this evolved to moderin practice, where one justice writes an opinion for the majority side, and other justices lob in concurring and dissenting opinions if they feel it necessary to make some point overlooked by, or in contrast to the majority opinion.
The claim “society never goes backward” is not a generalization, is it? If you had said, “society often progresses if we define progress as expanding what political liberals view as important rights,” then I’d could get behind that. But that more accurate expression doesn’t really serve the same purpose for your argument that is served by the premise that "society never goes backward.’ I think your point is much weaker with the more accurate version substituted.
The claim of progress assumes a certain political vantage point. For example, if you believe in economic rights (e.g. the power to control and dispose of your property as you see fit), then you’ve seen a significant retrogression since the New Deal and the end of the Lochner era. Or if you believe in the free exercise clause of the US Constitution, you have a hard time explaining its evisceration in the 1990’s. Even within the frame of progress for political liberals, I think it’s hard to argue that the right to organize, say, is at its zenith.
Most of these freedoms aren’t inevitable as part of some grand Hegelian dialectic of history. They are the product of uncertain battles fought by tenacious and lucky groups. Tell me, is it inevitable that animal rights factions will win out? Is it inevitable that transgendered people will gain the full protection of the law? Is it inevitable that a living wage will be paid to all workers? I don’t see any of those things as inevitable (or even necessarily good), but aside from some post hoc decision about what really counts as a fundamental right, I don’t know how to distinguish them from unions right to organize, the right to contraception, etc.
To get this a bit more defined, the Jay and Ellsworth courts, in the 1790s, wrote the “seriatim” opinions described in DSYouing’s first paragraph.
John Marshall sought, instead, to have the court issue a single “per curiam” opinion – a clear statement of the law and how the judges arrived at it, signed on by all the judges.
While this was common practice where there was no disagreement among them, early on the justices who disagreed with he majority took to writing their own opinions – “dissents”. Marshall himself found himself in dissent a few times. By 1820 the modern system was pretty much in place, and has continued to this day.
Since I never use the word progress (or, heaven forfend, zenith) I don’t feel any need to defend it. I did talk about the movement of society. That can work in various guises, both with increasing civil rights and limiting laissez faire economic notions.
Since I also can’t imagine how you read into what I said the notion of inevitability, I also don’t need to try to read any future. Quite the contrary. I’m a historian. I read what has happened in the past. The past certainly happens by fits and starts and with its own sense of timing. All that I’m saying is that history is unidirectional. Once a notion about the proper conduct of that society settles in, that notion becomes unshakable. It’s true that the call for new conduct tends to coincide with the contemporary definition of liberal at that time, but it’s equally true that settled conduct becomes part of the conservative set of values that are defended as important traditions.
I don’t talk about progress or inevitability or zenith in society any more than an evolutionist talks about progress or inevitability or zenith in biology. That’s for creationists to despoil the discourse with.
At this point I suppose its too much of a hijack for the GQ thread. I disagree that the claim that “society never moves backward” is accurate, or that it is just an empirical statement of history, with no underlying attachment to notions of progress or inevitability. But we can argue about it some other time. 