Urofsky shows how the practice grew slowly but steadily, beginning with the infamous & now overturned case of Dred Scott v. Sanford (1857) during which Chief Justice Roger Taney’s opinion upheld slaver and ending with the present age of incivility, in which reasoned dialogue seems less and less possible. Dissent on the court and off, Urofsky argues in this major work, has been a crucial ingredient in keeping the Constitution alive and must continue to be so.
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In addition, the time may come when the minority opinion becomes the majority opinion. According to Rabbi Yehuda, “An individual opinion is cited along with the majority opinion as it may be needed at some time in the future.” —Talmud, Mishna Eduyot 1.5
When John G. Roberts Jr. testified before the Senate Judiciary Committee at his confirmation hearings in 2005, he indicated that he hoped the Court would return to its older practice of speaking with one voice—unanimous opinions founded on narrow grounds. Nearly everyone familiar with the Court and its history—scholars and practitioners alike—surely smiled at Roberts’s seeming naïveté, and his dream evaporated almost as soon as he took the oath as chief justice. While there have been a few terms in which the Court spoke in one voice almost half the time, there have been others when the nonunanimous rate has exceeded 70 percent.
The role of dissent is a long and honored one not only in the history of the Court but in that of the United States as well. Many of the early settlers were either religious or political dissenters, and the colonies soon filled with immigrants holding a wide diversity of views on almost everything. The American Revolution came about because of popular dissension from the policies of His Majesty’s Government, and once the colonies had achieved independence, they fell to squabbling among themselves. The Constitution imposed an order on the country that has worked remarkably well for more than 225 years, yet the Framers never intended to quash dissenting views. The First Amendment to the Constitution holds that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” And the Framers included a process to amend the document when necessary.
The English statesman William Gladstone described the American Constitution as “the most wonderful work ever struck off at a given time by the brain and purpose of man.” The Framers—those “demigods,” as Thomas Jefferson hailed them—intended their work to serve the needs not only of a small nation of thirteen states clinging to the Atlantic Seaboard but of whatever that country might become. While there are some very specific clauses—members of the House of Representatives must be twenty-five years old, the term of a senator is six years—the great enabling clauses are far more general. What exactly do the following mean?
—Congress shall have the power to lay and collect taxes, or to regulate interstate and foreign commerce, or
—the executive power shall be vested in a president, or the judicial power in one supreme court, and such other courts as Congress shall establish, or
—no state shall deny its citizens “due process of law” or “equal protection of the laws” or impose “cruel and unusual” punishment.
Contrary to the arguments of the so-called originalists that the meaning of the Constitution is and always will be the same, the historical evidence is clear that the Framers envisioned the meaning of certain phrases to change as the country grew and evolved, or, as James Madison put it, the meaning of the constitutional text should be “liquidated and ascertained” over time in the light of the emerging needs of a changing nation. Madison and Alexander Hamilton might not have used the phrase “living Constitution,” but their essays in The Federalist show that they never intended the document to be static and frozen in the year 1787.
Ever since John Marshall handed down the Court’s opinion in Marbury v. Madison (1803), it has been “emphatically the province and duty of the judicial department to say what the law is.” Or, as another chief justice said over a century later, “the Constitution is what the Supreme Court says it is.”
Because the powers of the Supreme Court—and indeed of the government itself—were still plastic in those days, Marshall sought to have the Court speak in one, authoritative voice and abandoned the English practice of all the judges delivering individual opinions seriatim. This did not sit well with some people, but it did help to build up the type of national government that the Framers had envisioned. Even in Marshall’s day, however, there were dissents from the opinion of the Court. Nearly all of them are forgotten today, because they had no lasting jurisprudential value, they did not convince future courts, and, to use the terminology of this book, they did not contribute to the constitutional dialogue.
The constitutional dialogue is the device by which our nation has adapted its foundational document to meet the needs of a country that has expanded across the continent, and indeed across oceans, now counts more than 300 million souls, and has become both urbanized and industrialized. It has allowed us to take into account developments that the founding generation could never have envisioned—railroads, automobiles, airplanes, telephones, computers, and international relations involving not a few powers in Europe but nearly two hundred nation-states around the world. The United States began as a country in which slavery existed in nearly all of the former colonies; it took a civil war to end that bondage and what some have termed a “second reconstruction” to erode the legacy of racial segregation. Women and other minorities have won a rightful place in society, and the federal system of shared sovereignty between the states and the federal government is still alive and well.
Questions about these developments have come before Congress, the executive branch, and the courts. The answers have never been simple, because political, social, economic, cultural, and legal questions have been involved. All three branches of the federal government, as well as those of the fifty states and the American people, have been involved in debates ranging from the rights enjoyed by corporations to campaign finance laws to same-sex marriage. Starting almost from the founding, this debate has been continuous, lively, and, as I hope to show, essential to our nation’s well-being.
Each generation of Americans has debated public policy in a variety of ways, and a majority of the questions asked have had no simple answers. If we look back at American history, hardly any major policy decision since the founding has not had advocates on two or more sides of the issue. That has made ours a vibrant democracy, but the debate has also taken place within the parameters of constitutional provisions—both those that empower certain options and others that limit them. While I refer to this debate among other branches of the government and the people, my main focus is on the debate within the Supreme Court.
In 1835, a French visitor to the United States, Alexis de Tocqueville, noted that “scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” Where other societies have sometimes taken to the streets to resolve important questions of government, in the United States we go to court both for private law matters, such as contract or tort issues, and for public law. It is one of the great strengths of our system, and it places a great deal of power in the hands of the nine men and women who sit in the Marble Palace in Washington.
I have always told my students that only the hardest cases get to the Supreme Court; if the issue is easy, it is resolved in the lower courts. Because the questions are hard, and because they cause disagreement among the people, it is not surprising that the justices of the high court will also disagree. But all of them understand that just because a majority decided that “A” is right in a particular case, it does not mean it will always be the law. The dissenter will point out what he or she perceives to be the weakness of the majority opinion, the faulty constitutional reasoning, or a failure to understand the actual facts of the case. If the dissent is strong enough, if it is well reasoned, it may persuade other judges in the future to overturn the majority decision and accept the minority view.
This does not happen often. Many cases, even if not unanimous, are decided correctly, and the dissent will be little noted nor long remembered. That is as it should be. While we expect the high court to take into account differing views, we also want it to resolve the case at hand correctly. But some issues are not easily determined, and that is where the dissent comes in. The dissenter is telling the majority, “Wait. I think you have this wrong. You need to look at that constitutional clause and its history again. You need to ask other questions.”
Sometimes the separate opinion has an immediate impact. A draft dissent may win over sufficient votes to become the majority view. At other times, it may lead the majority to accept some of its points, and thus modify the holding. More important, the dissent tells lower courts and future justices that this rule needs to be examined carefully, and it should eventually be revised or overturned.
Louis Brandeis often said that his faith in time was great. He believed—rightly as it turned out—that many of the dissents he wrote in his twenty-three years on the bench would eventually prevail. His separate opinion in Whitney v. California (1927)—a concurrence that is in fact a dissent—is considered by many scholars to be the greatest dissent ever written, ultimately shaping our modern jurisprudence of free speech. It did that because in cases in the four decades following Whitney the Court had to take into account Brandeis’s views. Even though Brandeis died in 1941, his opinion kept speaking to the Court, his ideas an essential part of the constitutional dialogue over the meaning and purpose of free expression in a democratic society.
This book traces dissenting opinion across American constitutional history. It is not, however, a history of dissent, and given the thousands of dissents that have been written, it would be impossible to deal with all of them. My concern has been those dissents that have played a critical role in the dialogue, and even there I am sure people will say, “What about this dissent? Isn’t it important?” It may well be, but it would be impractical to deal with the entire dialogue. My purpose is to illustrate the dialogue, show how and why it is important, and look at representative justices and cases.
The dialogue that shaped constitutional understanding has also formed us as a nation. The constitutional dialogue does not take place in a vacuum, and in developing our understanding of the Constitution, it also molds us as a people. When the justices talk about the limits of free speech, for example, their decisions and the dissenting opinions create and most often expand how “We the People” can discuss and make our policy decisions. When the Court deals with difficult cases involving discrimination, it reflects the fissures in the broader society over how minorities will be treated and often not only serves to increase the rights of those groups but affects the public dialogue on those matters.
The dialogue that takes place among the justices is a reflection of a far larger dialogue taking place among the citizenry. We are still trying to answer the question asked many years ago by the Framers, “What kind of country shall we be?” So when the discussion in the chapters that follow talks about economic or civil liberties, or the contours of criminal justice procedure, or how enemy combatants should be treated, that discussion always, even if not at all times overtly, is tracking not only the constitutional dialogue taking place within the Court but the broader conversation between the Court and the other branches of government and between the justices and the people. These are not one-way monologues, and even if not every decision of the Court and its accompanying dissents lead to an overwhelming public reaction, the process is there. That is, I would suggest, the most important feature of the constitutional dialogue—the way it shapes not only the Constitution but our society.
Table of Contents
1. Dissent and the Constitutional Dialogue 3
2. From Seriatim to the Opinion of the Court 37
3. From Marshall to Dred Scott 55
4. Field, Slaughterhouse, and Munn 82
5. John Marshall Harlan: The First Great Dissenter 105
Mise-en-Scène 1: Harlan and Holmes in Lochner v. New York (1905) 137
6. Holmes and Brandeis Dissenting 150
Mise-en-Scène 2: Brandeis in Olmstead v. United States (1928) 194
7. The Return of Seriatim 209
8. The Prima Donnas I: Personalities and Issues of Wartime 227
Mise-en-Scène 3: Wiley Rutledge and In re Yamashita (1946) 257
9. The Prima Donnas II: Incorporation, Criminal Procedure, and Free Speech 275
Mise-en-Scène 4: Black in Betts v. Brady (1942) 306
10. Lower Federal Courts, the States, and Foreign Tribunals 318
11. Continuing Themes, from Warren to Roberts 339
Mise-en-Scène 5: Marshall, Brennan, and Capital Punishment 388
12. Coda 406
Index of Cases Cited 489