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Dissents

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Significance: Although a dissenting opinion has no legal effect, it allows justices to call attention to perceived errors in the majority's reasoning and to suggest to potential opponents strategies for circumventing or overturning the majority result. Dissents may also influence the Court's final majority opinion.


Dissenting opinions were relatively rare in the first one hundred years of the Supreme Court's history and were far from the norm even in the early decades of the twentieth century. After the 1940's the number of dissents increased dramatically. Dissents should be distinguished from concurring opinions, in which a justice supports the majority outcome but offers a different rationale for reaching that outcome. Although dissenting opinions may affect the Court's decision making or the development of a law, they have no legal effect whatsoever. A rather cynical law professor was once asked by a first-year student how important dissents were and whether they should be studied. The professor responded that dissents were the equivalent of “judges baying at the moon.” Court justices themselves are divided on the significance and effects of dissents.


History of Supreme Court Dissent

Before elevation of John Marshall to fourth chief justice in 1801, Court opinion procedures followed English practice as represented by the King's Bench. English judges delivered their opinions seriatim each judge announcing his own opinion and the reasoning behind it. Unlike the King's Bench, Supreme Court justices delivered their opinions in reverse order of seniority, the most junior justice speaking first. Marshall came to the bench with a powerful concern for the independence and authority of the judiciary, and he believed that the Court would command greater respect if it spoke with a single voice, presenting a united front to its opponents. Marshall therefore instituted the practice of issuing a single opinion and discouraged justices from writing dissenting opinions. Through most of his tenure, Marshall dominated the Court, for example, delivering twenty-four of the twenty-six opinions handed down between 1801 and 1805. Marshall's leadership skills, combined with the relative mediocrity of many of the justices who served with him during his thirty-four years on the Court, ensured that the norm of a single opinion for the Court and its corollary of no dissent became strongly embedded. Although public regard for the Court increased, Marshall was not without his critics, and none perhaps was more vehement than Marshall's frequent political and personal opponent, his cousin President Thomas Jefferson. In an 1820 letter, Jefferson criticized Marshall's practice of issuing a single opinion and urged a return to seriatim opinions, denouncing the “crafty chief judge, who sophisticates the law to his own mind, by the turn of his own reasoning.” Marshall's dominance was not complete. There were dissents during Marshall's chief justiceship, most coming from Associate Justice William Johnson, characterized by a biographer as “the first dissenter.” Johnson's first dissent was in Huidekoper's Lessee v. Douglas (1805). During Johnson's service on the Court, seventy dissenting opinions were filed, almost half written by Johnson. Marshall himself filed nine dissents and one special concurrence during his years on the Court. During the tenure of Marshall's successor, President Andrew Jackson's appointee Roger Brooke Taney, dissents became more frequent. Taney was less obsessed with delivering the opinion of the Court himself than Marshall had been, and there were even instances of seriatim opinions. However, Marshall's norm of unity remained strong throughout the remainder of the nineteenth century, with concurring or dissenting opinions in only about 10 percent of the Court's decisions. Marshall's norm held sway into the early decades of the twentieth century. Justice Oliver Wendell Holmes, who served on the Court from 1902 to 1932, is often referred to as the “Great Dissenter,” but he dissented less frequently than his fellow justices did. Much of his reputation undoubtedly rests on the rhetorical quality of his dissents rather than their quantity, as is true of his frequent ally in dissent, Justice Louis D. Brandeis. The turning point came in 1941 with the elevation of Associate Justice Harlan Fiske Stone to chief justice. Stone's predecessor, Charles Evans Hughes, was a stern taskmaster, and Stone resented Hughes's approach to presiding over the justices’ conferences. Stone reacted by allowing extensive and often rambling discussion at conferences and tolerating dissent far more readily than Hughes. Stone's own rate of dissent was higher than that of any previous chief justice. High rates continued under Stone's successor, Fred M. Vinson. In the 1970's and early 1980's the number of dissenting opinions rose dramatically, but after the departure of Chief Justice Warren E. Burger in 1986, dissenters tended to join in a single dissenting opinion rather than write separate opinions. In the 1990's typically the senior justice in the minority assigned one of the dissenters to write a dissent for all to join. The profound change in judicial norms regarding dissent is evident from a comparison of rates of dissenting opinions on the Warren E. Burger and William H. Rehnquist Courts with those of some of the most notable dissenters in earlier periods. According to one researcher, Brandeis averaged 2.9 dissents per term and Holmes 2.4. Justice William O. Douglas averaged 38.5 dissents per term during his time on the Burger and Rehnquist Courts. Second in line was Justice John Paul Stevens, who, in the period from 1975 to 1994, averaged 21 per term. Indeed, in the modern era, it is by no means rare for justices to dissent from denials of petitions for hearing and to file an opinion explaining their vote, an action considered unthinkable throughout the nineteenth century and into the early twentieth. Scholars cite several reasons for the high dissent rates prevalent since the Stone Court. To some extent, the kinds of issues faced by the Court after 1937 may explain the erosion of consensual norms. The Court during the New Deal began to hear difficult cases dealing with the nature and scope of individual liberties. An increase in the number of law clerks assigned to each justice made it easier for justices to prepare separate opinions, while at the same time, the Court's dramatically increased caseload (a thousand cases per term during Stone's chief justiceship versus more than four thousand in the 1980's) heightens dissent because the justices no longer have time to engage in the extended discussions necessary for reaching a compromise opinion. Changes in the Court's jurisdiction during the early decades of the twentieth century also may have had an impact. As the Court gained more and more discretion over the cases it would hear and as its mandatory appellate jurisdiction was diminished, the easy cases that in the past would have produced unanimous decisions disappeared, leaving only the more difficult and divisive cases.


Functions of Dissent

The battles that are fought in the conference room over difficult issues are hard and sometimes bitter. Indeed, in abortion, right-to-die, or capital punishment cases, the issues are quite literally matters of life and death. Not surprisingly therefore, one function of dissent is to allow expression of what a justice believes to be fundamental error by the majority. In the last decade of their tenure on the Court, both Justices William J. Brennan, Jr., and Thurgood Marshall knew that in most death penalty cases, they did not and probably never would have the votes to gain a majority for their view that the death penalty constitutes cruel and unusual punishment in violation of the Eighth Amendment. However, they regularly filed dissents in such cases. An opinion expressing their views was programmed into the Court's computer system and automatically added to every capital punishment case in which review was denied. A dissent may result from a battle among the justices. In Bowers v. Hardwick (1986), five justices upheld the constitutionality of a Georgia antisodomy statute as applied to homosexual sex between consenting adults. The fifth vote in that case was supplied by Justice Lewis F. Powell, Jr., who had initially voted with the four dissenters. Justice Harry A. Blackmun was assigned to write for the majority, but when Powell switched his vote a few days after the conference, what was to have been the majority opinion overturning the Georgia statute became a dissent. Justice Antonin Scalia argues that a dissent, threatened or actual, may serve to improve the quality of the majority opinion by forcing the author to think carefully about the argument and to remove any dubious assertions or reasoning. Scalia also believes that dissents have several external functions. A dissent may augment rather than diminish the prestige of the Court, particularly if history judges the majority's decision harshly. The damage is mitigated if there is evidence that at least some of the justices saw the danger. In 1896 in Plessy v. Ferguson, seven justices voted to uphold separate but equal accommodations for blacks and whites. History's judgment of the Court would likely be much harsher were it not for the lone, eloquent dissent in that case by Justice John Marshall Harlan. In the Bowers case, later scholarly commentary was more favorable regarding Blackmun's position than that of the majority. After leaving the Court, Powell claimed that Blackmun's dissent in Bowers presented the better argument. Other external consequences of a dissent, according to Scalia, are that it may help to change the law and to give the general public and the legal profession some sense of how the Court as a body thinks about fundamental issues of constitutional law. In the process, the Court is kept where, according to Scalia, it should be, “in the forefront of the intellectual development of the law.”


Impact of Dissents

Assessing the impact of dissenting opinions is even more difficult than determining the impact of Court decisions. Undoubtedly some of the internal and external consequences posited by Scalia do occur in some instances, but judging when and to precisely what effect is problematic. Blackmun's dissent in Bowers ultimately persuaded Powell, but only after Powell had left the Court. Some argue that dissents undermine the legitimacy of the Court and may encourage noncompliance. The dissents by Holmes, Brandeis, and Stone that accompany some of the Court's anti-New Deal decisions in the early 1930's provided additional ammunition to President Franklin D. Roosevelt's supporters in the press and in Congress. In certain obvious landmark cases, the Court has gone to great pains to achieve unanimity. Chief Justice Earl Warren's prodigious efforts to produce a unanimous opinion in Brown v. Board of Education (1954) are well documented, but the unanimous opinion did not prevent massive resistance to desegregation in the states affected by the decision. In United States v. Nixon (1974), the justices consciously strove to produce a unanimous opinion in the face of suggestions from President Richard M. Nixon's attorney that the president would not comply with a fragmented decision. Ultimately, Nixon released the tapes as the Court ordered.



Further Reading

  • Two excellent studies of the workings of the Court provide detailed treatments of its decision-making process, particularly opinion writing: Lawrence Baum's The Supreme Court (8th ed., Washington, D.C.: Congressional Quarterly, 2004) and David M. O’Brien's Storm Center (7th ed., New York: W. W. Norton, 2005). O’Brien's study situates the Court in the larger context of the legal and political system of the United States. Slightly dated but eminently readable is Charles Evans Hughes's The Supreme Court of the United States (New York: Columbia University Press, 1928). For a study of the Court and its procedures compared with courts in England and France, an indispensable source is Henry J. Abraham's The Judicial Process (7th ed., New York: Oxford University Press, 1998). On disagreements among the justices, an essential work is P. J. Cooper's Battles on the Bench: Conflicts Inside the Supreme Court (Lawrence: University Press of Kansas, 1995), as well as his and Howard Ball's The United States Supreme Court from the Inside Out (Englewood Cliffs, N.J.: Prentice-Hall, 1996). Also valuable is Donald E. Lively's Foreshadows of the Law: Supreme Court Dissents and Constitutional Development (Westport, Conn.: Praeger, 1992). More general works on the Court's decision-making processes include H. W. Perry's Deciding to Decide (Cambridge, Mass.: Harvard University Press, 1991) and Bernard Schwartz's Decision: How the Supreme Court Decides Cases (New York: Oxford University Press, 1996). Another excellent and accessible discussion of the Court's procedures is Chief Justice William H. Rehnquist's The Supreme Court: How It Was, How It Is (New York: Morrow, 1987). Edward G. White's Oliver Wendell Holmes, Jr. (New York: Oxford University Press, 2006) is a full biography of the Supreme Court's most famous dissenter.