What Makes a Great Supreme Court Dissent?

 

What is the significance of a dissent at the Supreme Court?  According to legal historian Melvin I. Urofsky, in most cases dissents don’t matter much at all.  “Nearly all of them are forgotten today, because they had no lasting jurisprudential value, they did not convince future courts … they did not contribute to the constitutional dialogue,” a term he uses to refer to the contestation over constitutional issues that takes place outside the judiciary.  Yet some dissents have not been forgotten.  Some dissents have played a role in shaping future events.  Some dissents have resonated with “the intelligence of a future day,” as Chief Justice Charles Evans Hughes memorably put it.  These dissents are the subject of Urofsky’s just published book, Dissent and the Supreme Court: Its Role in the Court’s History and the Nation’s Constitutional Dialogue.

Urofsky traces the fascinating history of dissenting practices on the Supreme Court.  In the early nineteenth century, Chief Justice John Marshall persuaded his colleagues to abandon the practice of having each justice write his own opinion in every case in favor of having a single opinion speak for the entire Court.  Dissents were rare on the Marshall Court.  Under the leadership of Marshall’s successor, Roger B. Taney, who served as Chief Justice from 1836-1864, dissents gradually increased in frequency.  Although most cases were still decided with a single opinion of the Court, from the Taney Court into the early twentieth century, dissenting opinions became common practice in major constitutional cases.  Whatever hesitancy justices had toward dissenting dissolved in the 1940s. The rate of unanimous decisions plummeted and dissents (as well as concurring opinions) became commonplace.  

Some have expressed concern that the modern practice of multiple opinions, often fractured in dizzying ways, risks undermining the Supreme Court’s legitimacy.  Have court opinions “become a babble making it difficult, if not impossible, for the constitutional dialogue to take place?” Urofsky wonders.  In defense of themselves, the justices typically offer two responses.  First, they emphasize that they actually agree on a large percentage of cases.  And second, they argue that dissents ultimately strengthen the Court.  “When history demonstrates that one of the Court’s decisions has been a truly horrendous mistake,” Justice Scalia explains, “it is comforting—and conducive of respect for the Court—to look back and realize that at least some of the Justices saw the danger clearly, and gave voice, often eloquent voice, to their concern.”

Urofsky offers a thorough and often quite fascinating description of famous Supreme Court dissents through the years.  He draws on his deep knowledge of American legal history to provide useful context about surrounding events and the justices themselves, allowing the reader to fully understand the issues and personalities involved.  One can read the book from start to finish and receive an edifying overview of the history of the Court.  Or one can take a more selective approach, exploring the many anecdotes and character sketches that populate the book.

Why do some dissents resonate, while most are largely forgotten?  This is a question that Urofsky considers throughout the book. Urofsky suggests that the justices themselves have some control over the impact of their dissents.  He argues, for example, that the “babble” of many dissents and concurrences diminish the impact of any given opinion.  He notes that Justice Frankfurter’s frequent concurring and dissenting, combined with his lengthy, law-review style writing tendencies, has limited the impact of his opinions.  He also believes that Scalia’s uncompromising, attacking style gets attention but limits the persuasive value of his dissents.  

But, in the end, Urofsky admits, “we cannot tell at the time whether or not a dissent will succeed in its call to future generations.”  There are plenty of eloquent, quotable dissents gathering dust in the U.S. Reports.  What really explains why some dissents last, and some do not, comes down to the national “constitutional dialogue” referenced in the book’s subtitle.  

The national constitutional dialogue is always bigger than any Supreme Court opinion.  When it comes to major issues of constitutional contestation, Supreme Court opinions join the dialogue.  Landmark Court rulings can elevate the salience of a constitutional dispute.  This was the case with Brown, for example, or Roe.  Court rulings can steer discussion in certain ways.  But for a dissent—a legal statement that requires no one to do anything—to play a role in this constitutional dialogue requires not only a measure of eloquence and some quotable lines.  It requires people outside the Court who are engaged in this constitutional dialogue to use these dissents to advance their agenda.  And it requires some receptivity among the American people to the vision of law contained in the dissent.  Historical circumstances, not justices, make great dissents.

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