In Praise of Dissent

As they hobble toward the end of this snake-bit term, the justices seem to have lost even the energy to argue with each other. On Monday, the justices issued a Clean Water Act decision, Army Corps of Engineers v. Hawkes Co. Hawkes was a unanimous judgment, with no actual dissents. Justice Anthony Kennedy issued a 33-line concurrence expressing “concern” that the Environmental Protection Agency is pushing its Clean Water Act authority too far; Justice Elena Kagan managed to spin a mild disagreement with Justice Ruth Bader Ginsburg into 22 lines; Ginsburg got 19 lines out of agreeing with herself instead of Kagan.

At this rate, by the end of the term, separate opinions are likely to read, “Justice Sotomayor, concurring: Obvi,” or “Justices Alito and Thomas, dissenting: As if!”

The sight of mild-mannered justices listlessly tossing Nerf balls may inspire some nostalgia for the old days when any important case might see a bench-clearing brawl. During the Rehnquist and early Roberts Courts, justices were justices and not afraid to show it.

If you feel that way, you should take time off from watching this term to read Melvin Urofsky’s terrific book, Dissent and the Supreme Court: Its Role in the Court’s history and the Nation’s Constitutional Dialogue, published last fall. Urofsky, one of the most distinguished historians writing about the Court, surveys the disagreements among the justices from the days before the Marshall Court and into the 20th and now 21st centuries.

In an interview, Urofsky told me that he became interested in dissents through his work on Louis D. Brandeis: A Life, a full-length biography of the nation’s greatest progressive justice. He was “in many ways the great dissenter,” he said. “Great dissent,” for Urofsky, has a particular meaning. By definition, a dissenter is a loser in the case before the Court. But on occasion, a dissenting judge, or judges, may influence what Urofsky calls “the ongoing constitutional dialogue” to the point that, years or decades later, a chastened Court finds itself adopting the dissenters’ logic. “The great dissents are the ones that changed people’s lives,” he said.

Urofsky’s prime example is Brandeis’s 1928 dissent in Olmstead v. United States, a Prohibition case that first posed the issue of whether the government needed a warrant to tap a suspected criminal’s phones. The majority said no; but Brandeis wrote a dissent that is frequently quoted today and, Urofsky writes, “should be read every day by government officials, including presidents.”

Brandeis warned:

This kind of dissent was and remains rare. The first such “great dissent,” for Urofsky, was that of Justice Stephen Field in The Slaughter House Cases (1872), a challenge to a New Orleans regulation of butchers. To modern eyes, the ordinance seems quite mild (the idea was to keep butchers from throwing animal guts into the drinking-water supply), and the Court upheld it. But Field was outraged: restricting the conduct of a lawful calling, he said in nearly Scalian tones, was “odious” and “execrable tyranny”—and thus violated the then-new 14th Amendment’s protection of citizens’ “privileges or immunities.” The “greatness” of this dissent, for Urofsky, lies in the inspiration it gave to the aggressively reactionary Gilded Age Court of the next two generations, which voided almost every progressive law that came before it.

Those excesses inspired the next “great dissent” that Urofsky outlines: Justice Oliver Wendell Holmes’s dissent in the infamous case of Lochner v. New York. New York restricted commercial bakers’ hours to 60 a week; the majority, inspired by Field, struck this down. “This interference on the part of the legislatures of the several states with the ordinary trades and occupations of the people seems to be on the increase,” they sniffed. Both Holmes and Justice John Marshall Harlan dissented. Harlan argued that the majority was not following the Court’s own precedent. Holmes, in considerably more prophetic tones, eviscerated the Court’s habit of reading of laissez-faire economics into constitutional law. “[T]he word ‘liberty,’ in the 14th Amendment, is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law,” Holmes wrote—a foretaste of what is now called “rational-basis” review of laws that don’t offend fundamental rights.

“I and other people had always thought that Harlan’s dissent in Lochner was the better dissent because it dealt with the majority’s arguments,” Urofsky said. “But Holmes’s dissent took us in a whole new direction. He wrote not just ‘You’re wrong on this,’ but ‘Here’s the way you should go.’”

Dissents, great or otherwise, remained relatively rare until the New Deal era. “What surprised me was that until the 1930s, 90 percent of all opinions came down unanimously,” he told me. For comparison, the last two terms of the Roberts Court saw unanimity in 41 percent (2014-2015) and 66 percent (2013-2014) of cases. The rise of the dissent, he says, stemmed from the passage of the so-called “Judges’ Bill” in 1925. In the bill, Congress sharply cut back the number of cases the Court was required to hear. Instead, it now had leeway to pick and choose. “The act succeeded … in transforming the Court from a forum that corrected errors in ordinary private litigation—such as personal-injury suits—into a constitutional tribunal that decided policy issues of national importance,” Urofsky writes in the book. Not only did that change raise the stakes in individual cases, it also left the justices more time to brood—and bicker—about the cases they did hear.

Who is the greatest modern dissenter? “Ginsburg has written some very important dissents,” he said.

That answer may surprise the generation of law students who have found amusement, vindication, or fury in excerpted dissents by the late Antonin Scalia. In cases involving the death penalty, the rights of gays and lesbians, abortion, and other high-profile issues, Scalia hurled brickbats at his colleagues in the majority, introducing into the United States Reports words like “argle-bargle” and “jiggery-pokery,” and ridiculing Kennedy’s gay-marriage opinion as “the mystical aphorisms of the fortune cookie,” which he would not join even with “my head in a bag.”

Those seem to many of today’s lawyers like the models for a “great dissent.” But for all their memorable snark, Urofsky says, most of Scalia’s high-profile dissents are likely to fade quickly out of the “constitutional dialogue.” He compared Scalia to Justice Felix Frankfurter—a stinging comparison for a serious Court watcher.

Frankfurter’s dissents were long and passionate. There was little of Scalia’s personal abuse, but a great deal of emotion about how deeply Frankfurter felt that he was right. In his dissent in West Virginia State Board of Education v. Barnette, for example, Frankfurter, who was Jewish, wrote, “One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution.”* Nonetheless, with a great show of inner drama, he insisted the Court was dreadfully wrong to accept the religious-freedom claim of a group of Jehovah’s Witness children who were being forced to salute the American flag and that his position rejecting minority rights was the only proper one. The majority opinion, by Justice Robert H. Jackson, is now a foundation of modern religious-freedom and free-speech law; few recall Frankfurter’s public anguish.

“He and Scalia had a common type of dissent—the whine, ‘Why don’t you people listen to me? I know more than you do,’” Urofsky said. If history is a guide, that will not age well. “Who reads Felix Frankfurter’s dissents anymore?”

* This article originally stated that Frankfurter’s dissent was in a case concerning the Minersville School District in Pennsylvania. We regret the error.