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Justice Oliver Wendell Holmes’s dissents changed the course of free-speech law. / Library of Congress
Dissent and the Supreme Court: Its Role in the Court’s History and the Nation’s Constitutional Dialogue
Melvin I. Urofsky
Pantheon, $35 (cloth)
When Justice Antonin Scalia issued his scathing and bridge-burning dissent in the Supreme Court’s same-sex marriage case this summer, some observers wondered what he hoped to gain. After all, the justices in the majority had already made their decision—there was little hope of changing their minds. If anything, Scalia’s dissent, with its mocking tone and personal insults, seemed likely to alienate his fellow justices, exacerbating the already-deep divisions on the court and perhaps harming its public image. So, aside from letting off steam and repeating his well- known views, what was the point?
That question could be asked of any dissenting opinion, and it serves as the impetus for Dissent and the Supreme Court, by the distinguished legal historian Melvin Urofsky. Tracing the history of dissents from the founding era to the present, Urofsky attempts to determine what value can be found in opinions that, by definition, do not state the governing rule of law.
Until well into the twentieth century, dissenting opinions were rare, with the justices reaching unanimous results in roughly 90 percent of cases.
His conclusion is that dissents are an essential part of the “constitutional dialogue,” both within the Court and between the Court and the public, and that this dialogue is “the device by which our nation has adapted its foundational document to meet the needs” of changing times. The Constitution, in other words, is a work in progress, and dissents, like majority opinions, help determine the direction that progress takes.
The notion of a “living Constitution” is one that originalists such as Scalia wholly reject. To them, the words of the Constitution have a fixed meaning that can be ascertained only by looking to the views of the generation that ratified them. But by telling the story of constitutional law through the lens of dissenting opinions, Urofsky is able to show just how much our own understanding of the document has changed over time—and the extent to which dissents have presaged and driven much of that change.
He reminds us, for instance, that Justice John Marshall Harlan’s dissent from the doctrine of “separate but equal” in 1896 laid the groundwork for Brown v. Board of Education (1954), decided more than half a century later. That Justice Louis Brandeis’s dissent in a prohibition-era wiretapping case ushered in our modern understanding of privacy law. And that Justice Hugo Black’s persistent dissents throughout the 1940s and 1950s paved the way for the Court’s 1963 ruling in Gideon v. Wainwright that states must provide legal counsel for indigent criminal defendants.
Perhaps the most striking illustration of Urofsky’s thesis can be found in the history of free speech. Prior to 1919 the Court had interpreted the First Amendment to protect only the most harmless and benign speech. But that year, amid the hysteria of the first Red Scare, Justice Oliver Wendell Holmes issued a passionate dissent in a case involving the persecution of Russian anarchists. Warning against the suppression of unpopular ideas, Holmes wrote, “The best test of truth is the power of the thought to get itself accepted in the competition of the market.” For that reason, he argued, we should be “eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death” unless they pose an imminent threat to the nation’s safety.
That opinion, along with later dissents by both Holmes and Brandeis, brought about a transformation in the law of free speech. Within a few decades, their views were embraced by a majority of the Court, and Holmes’s metaphor of the marketplace of ideas became part of our cultural vocabulary.
Of course, such examples represent the best-case scenario for dissents—that they will reveal the error of the Court’s ways, ultimately becoming the law of the land. But these instances are relatively rare. Most dissents remain just that and are condemned to obscurity.
But even then, Urofsky argues, dissents play a vital role. A careful and well-reasoned dissent can force the majority to revise its opinion, perhaps limiting its reach or clarifying its rationale. As Justice Black put it (when the Court was all male), “Dissents keep the boys on their toes.” Dissents also remind the public that law is not a science and that, especially when it comes to the Constitution, objectively right answers are few and far between. Reasonable people can and do disagree about its meaning.
Despite the importance of dissents to our constitutional dialogue, they have not always been accepted as such. Until well into the twentieth century, dissenting opinions were rare, with the justices reaching unanimous results in roughly 90 percent of cases. When a justice did dissent, he often did so in apologetic, hesitant tones. Even Holmes, known as the “Great Dissenter” of his day, preferred not to disagree publicly with his colleagues, often telling them he would “shut up” instead. In his thirty years on the Court, Holmes filed only seventy-two dissents, an average of just over two per term.
Over time, however, dissents have become more common, so that in recent decades the Court has achieved unanimity in only about a third of cases. Urofsky offers several reasons for this. Beginning in 1925, the Court gained nearly total control over its docket, which meant it was no longer required to hear trivial cases and could instead focus on more important—and thus more controversial—disputes. The Court also became more political as it waded into national debates on topics such as the New Deal, civil rights, crime control, and abortion. That politicization often generated personal conflict, leaving the justices more inclined to air their grievances in public.
Although Urofsky believes in the value of dissents, he acknowledges that the current level of discord has costs. When dissents appear in two out of three cases, it is hard to know which to take seriously and which to dismiss as idiosyncratic. Constant bickering among the justices can also undermine the credibility of the Court: If the justices themselves cannot agree on the law’s meaning, why should we accept their decisions as authoritative?
Individual justices can lose credibility as well if they overuse the dissent as a platform. When Felix Frankfurter took his seat on the Court in 1939, he was one of the most respected legal minds in the country. But after writing 251 dissents over the course of twenty-three years—many of them long, pedantic, and condescending—his reputation suffered, and with it the power of his dissents; today his influence on the law is considered insignificant.
Justice Antonin Scalia’s acid dissents are so popular on the right they have been collected in a book.
Which brings us back to Scalia. Over the past five years, he has been the most prolific dissenter on the Court (a distinction that belonged to Justice John Paul Stevens before his retirement in 2010). Scalia is also one of the most aggressive dissenters in history. His dissents are often filled with caustic comments about the reasoning and good faith of his fellow justices. He has referred to positions taken by his colleagues as “unprincipled,” “utter nonsense,” “incoherent,” and so “irrational” they “cannot be taken seriously.” In Obergefell v. Hodges, the same-sex marriage case, he described Justice Anthony Kennedy’s majority opinion as “pretentious” and “egotistic,” compared its reasoning to the “mystical aphorisms of the fortune cookie,” and wrote that if he ever joined an opinion defending the liberty of individuals to define and express their identity, as Kennedy’s did, “I would hide my head in a bag.”
Scalia’s nastiness has baffled a number of court-watchers who wonder why he would risk alienating the very justices whose votes he may need in future cases. One theory is that Scalia is not writing for his fellow justices but instead for an audience of fellow conservatives. As the constitutional scholar Mark Tushnet has written, Scalia “has perfected the ‘opinion as attack ad’ rhetoric, offering quotable criticisms that writers of op ed pieces can incorporate into their work without saying anything new.” Indeed, Scalia’s dissents are so popular on the right they have been collected in a book sold by the conservative publisher Regnery.
Whatever the motivation behind Scalia’s approach, it seems doubtful that his dissents will ever join that rarefied group of minority opinions that change the course of the law. As Urofsky’s book shows, the greatest dissents in history have been part of a constitutional dialogue. Scalia’s dissents, like Frankfurter’s before him, read more like an angry monologue.
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So which dissents from our era are most likely to be vindicated in the future? Urofsky suggests a few possibilities, including Justice Ruth Bader Ginsburg’s dissent in the 2012 Obamacare decision. In that case, the Court ruled that Congress could not use its commerce power to require individuals to obtain health insurance, although it upheld the Affordable Care Act’s individual mandate as a permissible tax. Ginsburg, along with the Court’s three other liberals, would have accepted the commerce rationale, and she wrote a long, forceful opinion arguing that the majority’s view departed from precedent and relied on “newly minted constitutional doctrine.”
Ginsburg’s dissent may well prevail in the long run, but it likely won’t matter much, given that the Court has already upheld Obamacare. A more intriguing candidate is Justice Stephen Breyer’s dissent in McCutcheon v. FEC, a 2014 decision that struck down a limit on the total amount of money a person can donate to federal candidates in a given election cycle. Whereas the majority viewed the limit as a violation of donors’ free speech rights, Breyer argued that there were First Amendment interests supporting the limit as well. “Where enough money calls the tune,” he wrote, “the general public will not be heard.”
Breyer’s dissent is part of a larger theory he has advanced in books and opinions over the past decade in which the Court’s role is not just to protect individual rights from government overreach. Instead, its role is to interpret the Constitution in a way that ensures everyone has a voice in our democracy.
Whether that view will command a majority of the Supreme Court may not be known for many years. But in the meantime, Breyer has started the conversation.
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