dissentAfter Justice Antonin Scalia’s recent death, one aspect of the deceased Justice’s long record on the Supreme Court that occasioned significant commentary was the extent to which he often dissented from the Court’s majority, sometimes employing sharp and even provocative language. While Scalia was a more frequent dissenter than many of his fellow justices, at least during the time he served on the Court, there was nothing particularly unusual about the fact that he was dissenting (or, for that matter, that he dissented so frequently). Dissenting opinions have been a part of the Court’s activities for many decades now; however, it was not always so. In the country’s earliest days, dissents were rare, becoming frequent only late in the 19th century, and becoming common only early in the 20th century. As well-documented in Melvin I. Urofky’s interesting and well-written book, Dissent and the Supreme Court (here), dissenting opinions at the U.S. Supreme Court have come to play an important role in our constitutional dialogue. Indeed, as Urshofsky argues, the leading dissents have played an important role in how the country thinks of itself.


At the outset, the Supreme Court followed judicial practices brought over from England, in which each justice issued an opinion in every case, with the opinions delivered seriatum. This practice often made it difficult to discern the rule that the Court was applying, or even what the holding of the Court was. Chief Justice John Marshall, seeking to have the Court speak with a single authoritative voice, instituted the practice of having a single opinion that represented the opinion of the Court. For many decades, separate dissents from the Court’s majority were rare; however, in modern time dissents have become common, and they have become an important part of the Supreme Court’s role in our system of government and in our society.


The debate concerning important public policy issues and the meaning of the constitution is an important part of a vibrant democracy.  As Urofsky shows, this debate involves all three branches of the government, even the judiciary – the “weakest branch.” An important part of the judicial branch’s contribution to this debate has been the phenomenon of the dissenting opinion. Many dissents are neither little noted nor long remembered. However other dissenting opinions have an immediate impact; others only come to have an impact over time, sometimes only after the course of many decades. Some dissenting opinions eventually become the position of the Court and, indeed, the position of the country itself on important issues of policy and constitutional meaning.


The debate the Supreme Court justices frame through their separate opinions, and in particular through dissenting opinions, not only reflects the dialogue within the Court but also between the Court and the other branches and even with society as a whole. This dialog is an important part of the process by which we collectively address the question of “What kind of country will we be?” To cite just one example detailed Urofsky’s book, Justice Louis Brandeis’s separate opinion in Whitney v. California (1927) – technically a concurring opinion – not only has shaped our First Amendment jurisprudence but it has helped define the role of free speech within our system of government and within our society as a whole.


In explaining the role of dissenting opinions in this constitutional and social dialogue, Chief Justice Charles Evans Hughes wrote “A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed. Nor is this appeal always in vain.”


Urofsky’s book traces the developments in the practices and uses of dissenting opinions from earliest days of the Court’s history. However, it was really not until the Dred Scott case in 1857 that members of the Court published historically important dissents. The majority held in the Dred Scott case that a slave was not a citizen of the United States and therefore did not have the requisite status to be a part of a suit in federal court. The dissents of Justices John McLean and Benjamin Curtis showed how the majority opinion of Chief Justice Roger Taney ignored the Court’s own precedents and disregarded specific grants of power in the constitution. The dissents affected not only the public perception of the Court’s decision, but influenced the public dialogue of slavery-related issues and shaped the political discourse of the times as well. Abraham Lincoln relied on the dissents’ language and logic in many of his public statements about slavery. Ultimately, the dissents influenced the debate about the legal rights of the freedmen in the post-emancipation world that followed the Civil War.


Dissenting opinions played an important role in the development of the meaning of the Civil War amendments and the application of the amendments to the actions of the states, as the country reacted to the changes brought on by rapid industrialization and a changing society. In the late 19th and early 20th century, as the Court, and indeed, the larger society struggled with the proper role of the government in regulating economic activity and the proper relationship between the government and its citizens, dissenting opinions came to play an important role in defining rights and responsibilities.


Part of the reason that dissenting opinions, or at least some of them, have come to play such an important role is the way in which they are written. The author of a majority opinion must craft his or her opinion to satisfy the expectations of all of the other justices in the majority. A dissenter is under no such constraints. The dissenter is free to employ language and rhetoric that often the author of the majority opinion must avoid. The result is that some of the most memorable phrases in the American judicial literature come from dissenting opinions.


Thus for example, in a set of phrases that will be familiar to many readers, Justice Oliver Wendall Holmes wrote in his dissenting opinion in Abrams v. Unites States, “When men have realized that time has upset many fighting faiths, they may come to believe … that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market; and that truth is the only ground upon which their wishes may be safely carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all of life is an experiment.”


In the same way, Justice Louis Brandeis wrote in his dissent in Olmstead v. United States (1928), in what Urofsky calls “one of the most eloquent – and quoted passages in American law”:


The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. The recognized the significance of man’s spiritual nature, of his feeling and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against Government, the right to be let alone – the most comprehensive of  rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.


Brandeis’s dissent in Whitney not only supplied the underpinnings for the development of our current understanding of the Fourth Amendment’s prohibition against unreasonable searches and seizures, but his invocation of the “right to be left alone” supplied the philosophical basis for many of the Court’s later opinions relating privacy rights.


Of course, not all dissents have proven to be effective. As Urofsky points out, during Justice Felix Frankfurter’s 23 years on the Court, he wrote 247 opinions of the Court; 132 concurring opinions; and 251 dissents, “few of which are remembered today.” Frankfurter’s dissents are today studied “if at all, only for their futility.”


Similarly, not all dissents, even if principled and eloquent, bring either the Court or society around. The many dissents of Justices William Brennan and Thurgood Marshall (later joined by Justice Harry Blackmun) in death penalty cases, in which they argued that the imposition of a criminal penalty of death violates the Eighth Amendment’s prohibition against the cruel and unusual punishments, has not (at least not yet) translated into a majority opinion or even into mainstream public opinion.


Which brings us to the question of the dissenting opinions of Justice Scalia. Will they prove to be among the prophetic dissenting opinions that ultimately will guide the court in the development of its jurisprudence, in the pattern of Holmes and Brandeis? Or will they ultimately be forgotten, like Frankfurter’s dissents, or respected but disregarded, like the death penalty dissents of Brennan and Marshall? Because of the now well-established pattern in which the ultimate impact of a dissent is revealed only over the course of many years, it simply is too early to know whether Justice Scalia’s many dissents ultimately will inform the Court’s jurisprudence on the issues on which the Justice frequently wrote, such as the separation of powers under the constitution, and the rights of individuals in a variety of social contexts. As time passes, it will be interesting to see the extent to which his acerbic and occasionally vituperative tone affects the extent of the ultimate impact of his dissents.


In any event, I commend this interesting, ambitious, and well-written book to anyone interested in learning more about the history of the Court and its role in our system of government, as well as anyone interested in the important issues concerning the Court’s role as the arbiter and guide of important judicial, social, and even philosophical issues.


More About Scalia’s Dissents: Almost all of the memorials to Justice Scalia mentioned his forceful and effective writing style. These attributes certainly characterized many of his dissents. Whether or not you agree with his positions, his opinions – and in particular his dissenting opinions – often make for interesting reading. Whether with respect to the role of the states in a federal system (as for example with respect to his 2012 dissenting opinion in Arizona v United States, in which the Supreme Court ruled in part against Arizona’s law regarding illegal immigrants), or the roles of the constituent branches of government (as for example in Morrison v. Olson (1988), which upheld the independent counsel law), Scalia wrote forcefully – although often for himself alone. He was, for example in Morrison v. Olson, the lone dissenter.


Many of the memorials to the late Justice also mentioned his humor and wit. For those only familiar with Justice Scalia’s sometimes acerbic tone, it may come as something as a surprise that Justice Scalia could also be very funny, even in his dissenting opinions. The best example of Justice’s Scalia’s humor in a judicial opinion arguably is his dissent in PGA Tour v. Martin (2001). This case involved the claim of PGA Tour golf pro Casey Martin, who suffered from a medical condition that made it difficult for him to walk. In reliance on the Americans with Disabilities Act, Martin sought the right to use a golf cart, in order to be able to continue to compete. The PGA Tour declined his request on the grounds that allowing a golfer to use a cart would fundamentally alter the game of golf. In a 7-2 ruling, the Court held that allowing Martin to use a cart wouldn’t fundamentally alter the game of golf and ordered the PGA Tour to allow Martin to use a cart. Justice Scalia dissented.


As Daniel Bier noted in his February 20, 2016 post on Newsweek.com (here), Justice Scalia’s dissent in PGA Tour v. Martin serves as “as a textbook model of wit and clarity and humor in legal writing.” The opinion is worth reading at length and in full, but this excerpt should give you a sense of the opinion, as well as the tenor of Justice Scalia’s prose:


It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government’s power “to regulate Commerce with foreign Nations, and among the several States,” to decide What Is Golf.

I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer?

The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a “fundamental” aspect of golf.

Either out of humility or out of self-respect (one or the other) the Court should decline to answer this incredibly difficult and incredibly silly question. To say that something is “essential” is ordinarily to say that it is necessary to the achievement of a certain object. But since it is the very nature of a game to have no object except amusement (that is what distinguishes games from productive activity), it is quite impossible to say that any of a game’s arbitrary rules is “essential.”

Eighteen-hole golf courses, 10-foot-high basketball hoops, 90-foot baselines, 100-yard football fields—all are arbitrary and none is essential. The only support for any of them is tradition and (in more modern times) insistence by what has come to be regarded as the ruling body of the sport–both of which factors support the PGA TOUR’s position in the present case.

Others may find this dissent representative of Scalia’s opinions in other respects, as well, particularly given its sarcastic tone, and his disdain of the plight of the  disadvantaged; also, the opinion reflects the complicated relationship Justice Scalia maintained regarding legislation (which he expected courts to treat with deference, unless he happened to disagree with the policy embodied in legislative action).