TODAY, FOUR OUT OF EVERY FIVE US Supreme Court decisions include one or more dissenting opinions. Justice William O. Douglas wrote that the “right to dissent is the only thing that makes life tolerable for a judge of an appellate court.” But Justice Pierce Butler disagreed. “I shall in silence acquiesce. Dissents seldom aid in the right development or statement of the law. They often do harm. For myself I say: ‘Lead us not into temptation.’”
Constitutional scholar Melvin I. Urofsky dissents from Justice Butler’s opinion on dissents. He believes that Supreme Court dissents are a vital and important part of what he calls the “constitutional dialogue” 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.” Admittedly, over time the vast majority of dissents are readily forgotten, but Urofsky argues that “some dissents mattered greatly; they shaped the constitutional dialogue and in doing so shaped the type of government we now enjoy.”
In Dissent and the Supreme Court, Urofsky, a professor of law and public policy and professor emeritus of history at Virginia Commonwealth University, and co-editor of the five-volume collection of Justice Louis Brandeis’s letters, examines the most influential dissents in American history in a comprehensive, balanced, and highly illuminating new book, suitable for anyone interested in the Constitution, the Supreme Court, and the American democracy, lawyer and layperson alike.
Urofsky begins with an intriguing account of how Supreme Court opinions themselves have evolved. Had the early practices been followed, we might never have had any dissents at all. Initially, American courts followed the English model of seriatim opinions — each judge writing his (and back then they were only “his”) own opinion. The Judiciary Act of 1789 gave the Supreme Court broader jurisdiction over all sorts of cases, and over 70 percent of the opinions were issued “by the court” — what we today call per curiam — with no attribution to an individual justice.
The very first dissent was written by Justice Thomas Johnson in the long forgotten case of Georgia v. Brailsford (1793). In 1801, when President John Adams appointed John Marshall of Virginia Chief Justice, Marshall was eager to enhance the stature of the court, which he believed should speak with one voice, thereby adding prestige and influence to its decisions. According to Urofsky, the power and authority of great cases like Marbury v. Madison (1803) and McCulloch v. Maryland (1819), “are the greater because they came from a unanimous court.” During Marshall’s tenure (1801 to 1835) of 1,187 opinions, only 87 had either dissenting or concurring opinions (around 7 percent, the lowest of any period in the Court’s history).
Upon Marshall’s death in 1835, President Andrew Jackson appointed Roger B. Taney Chief Justice. During his 28 year tenure the rate of dissents would double, and of the over 100 cases involving constitutional questions, there were separate opinions in 44 percent of them. Dissenting and concurring opinions had become a permanent fixture at the Court.
Two of the Court’s most famous dissents were filed in the infamous case of Dred Scott v. Sandford (1857). With every justice writing his own opinion, Taney’s is treated as speaking for the Court, and Urofsky calls it “one of the worst he ever wrote.” Scott, a slave in Missouri, had spent time with his former master in the Wisconsin Territory, where slavery was forbidden. Under the law at the time, a slave taken into free territory became free, and “once free, always free.” But Taney ruled that while slaves could be citizens of a particular state, no black person could ever be a citizen of the United States and therefore could not sue in federal court to confirm his freedom. But Taney didn’t stop there. To cement the Southern claim that the Constitution protected slavery everywhere in the Union, he declared the Missouri Compromise of 1820 unconstitutional, the first time the Court had struck down a federal law in more than half a century.
Taney’s decision drew two stinging dissents by Justices John McLean and Benjamin Curtis, which Urofsky calls “unquestionably the most important dissents handed down in the Supreme Court up to that time.” Curtis’s dissent was the more professional, both scholarly and polished, but McLean’s, from the Court’s strongest opponent of slavery, tore Taney’s reasoning to pieces. McLean noted that Taney either cited no cases to support his positions or ignored contradictory precedents. He pointed out that under the Constitution, any person born in the United States, such as Scott, was a citizen of the United States, a proposition that would later be confirmed in the 14th Amendment.
In the field of civil rights, Urofsky adroitly explains how the four dissents in the Slaughter-House Cases (1873), reacting to the majority’s cramped view of the 14th Amendment, would trigger nothing less than “a constitutional revolution” that would interpret the 14th Amendment so as to make the Bill of Rights applicable to the individual states. Likewise, the lone and breathtaking dissent of Justice John Marshall Harlan in the Civil Rights Cases (1883), in which the eight member majority robbed the 13th and 14th Amendments of much of their meaning for the next eighty years, has been called “the noblest opinion in the history of country.” Accusing the majority of sacrificing “the substance and spirit” of those amendments, Harlan wrote:
Constitutional provisions, adopted in the interests of liberty, and for the purpose of securing, through national legislation, if need be, rights inhering in a state of freedom, and belonging to American citizenship, have been so construed as to defeat the ends the people desired to accomplish, which they attempted to accomplish, and which they supposed they had accomplished by changes in their fundamental law.
It would take until the 1960s for Harlan’s courageous dissent to take hold in the midst of the Civil Rights Movement, culminating in a 1964 decision in which the Court declared that the majority opinion in the Civil Rights Cases is “without precedential value.” Harlan’s dissent fits Dean Kathleen Sullivan’s description of “buried ammunition for future generations to unearth when the time comes.”
Urofsky devotes over 50 pages to the highly influential dissents of Justice Oliver Wendell Holmes Jr., and his protégé and partner Justice Louis Brandeis, particularly relating to the First Amendment and the right of privacy. Given his editorship of Brandeis’s letters and his own definitive biography Louis D. Brandeis: A Life, it is no surprise that Urofsky brings many keen insights to this portion of his book. “For all of Holmes’s wit and marvelous style, Brandeis’s dissents would lay the foundation for the future and are the great examples of how one can engage in and affect not just the constitutional dialogue but the larger question of what rights we value as a free society.”
First, Urofsky examines Holmes’s pivotal dissents in a series of cases in which the majority struck down economic legislation intended to protect workers on the theory that such laws violated “freedom of contract,” including Lochner v. New York (1905), Adair v. United States (1908), and Coppage v. Kansas (1915). Eventually, in 1935, the year Holmes died, Congress passed the National Labor Relations Act, recognizing the right of workers to join unions, which was upheld by the Supreme Court. A few years later, Holmes’s dissents became the law of the land when the Court unanimously abandoned the “freedom of contract” argument.
According to Urofsky, Brandeis “ranks as one of the great dissenters, perhaps the greatest.” His dissents were “written to explain to the bench, the bar, and the public why the majority had erred.” One of his clerks, Dean Acheson, noted that for Brandeis, “truth was less than truth unless it was expounded so that people could understand and believe.”
The landmark dissents written by Holmes and Brandeis in a series of cases testing the limits of the First Amendment in time of war illustrate Urofsky’s central theory that great dissents have immense influence on the future development of the law. Looking back it is now well accepted, as Urofsky puts it, that in “waging war ‘to make the world safe for democracy,’ the Wilson administration triggered one of the worst invasions of civil liberties in the nation’s history.” But at the time, inflamed by fear and appeals to blind patriotism, the justices of the Supreme Court, like most elected officials and much of the nation, supported laws that criminalized speech and press that opposed US involvement in World War I.
At first, even Holmes and Brandeis were not immune to the fever of war. In March 1919, the Court upheld the conviction of Charles Schenck for distributing leaflets attacking the constitutionality of the draft. Applying long-held views borrowed from British law, it was Holmes himself, speaking for the entire Court including Brandeis, who held that the “most stringent protection of free speech, would not protect a man in falsely shouting fire in a theater and causing a panic.” The question is whether the words create “a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”
In the fall of 1919, the Court heard the case of Abrams v. United States, involving five Russian Jews in New York City dedicated to social revolution and the emancipation of the working class, and who printed and circulated leaflets condemning US intervention in Russia and accusing President Wilson of deceiving the American people. The Court majority upheld the convictions of the five anarchists, but Holmes, joined by Brandeis, dissented in what Urofsky calls “one of his most famous” dissents, one that “still resonates as a call for intellectual freedom.”
Holmes disavowed what he had written barely eight months earlier and declared that despite the “dangers peculiar to war,” the “principle of the right to free speech is always the same,” in times of war as in times of peace.
[W]hen men have realized that time has upset many fighting faiths, they may come to believe more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment.
A few months later, in Schaefer v. United States (1920), Brandeis, joined by Holmes, dissented from the majority opinion upholding the conviction of the publisher of a German-language newspaper under the 1917 Espionage Act. The majority held that in time of war the First Amendment did not protect speech that weakened patriotism, raised skepticism, supported the enemy, or deflated the will to fight. But Brandeis disagreed and wrote:
The constitutional right of free speech has been declared to be the same in peace and in war. In peace, too, men may differ widely as to what loyalty to our country demands; and an intolerant majority, swayed by passion or by fear, may be prone in the future, as it has often been in the past, to stamp as disloyal opinions with which it disagrees. Convictions such as these, besides abridging freedom of speech, threaten freedom of thought and of belief.
In 1969, 50 years after Abrams and Schaefer, the Supreme Court adopted the dissents of Holmes and Brandeis as the law of the land. In Brandenburg v. Ohio, involving threats of violence by the Ku Klux Klan, the Court held that even advocacy of violence or unlawful conduct was protected by the First Amendment, unless “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
It was in Whitney v. California (1927) that Brandeis, joined by Holmes, would write what many consider the greatest “dissent” in the Court’s history. For technical reasons (since free speech issues had not been raised below), it was a concurring opinion, but it is seen, as constitutional scholar Mark Tushnet put it, “the best example we have of what a dissent can do.”
The 60-year-old niece of former Supreme Court Justice Stephen Field, Charlotte Whitney was a Wellesley graduate known for her philanthropic work. She was convicted under the California Criminal Syndicalism Act of 1919 for helping organize the Communist Labor Party. The law made it a felony to knowingly become a member of an organization formed to advocate the commission of crimes, sabotage, or acts of violence. Whitney had argued that the communist organization had never intended to become an instrument of crime or violence and the state offered no evidence that it had. The majority of the Supreme Court tossed aside such issues and decided to defer to the state legislature’s judgment on what was best to prevent the violent overthrow of the government.
Brandeis, joined by Holmes, “dissented” with an eloquence, according to Urofsky, “rarely matched in the annals of the Court.” Brandeis linked freedom of speech to the Founders’ faith in a free and open society:
They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine.
For Urofsky, “more than any other of his opinions, Brandeis’s Whitney concurrence has shaped American constitutional law.” Its influence can be seen in the powerful First Amendment opinions later written by Justices Hugo Black, William O. Douglas, William Brennan, and John Marshall Harlan II. In the 1960s, the Court would unanimously overturn an Ohio law similar to the one that had ensnared Whitney and would declare that the majority opinion in Whitney had “been thoroughly discredited by later decisions.”
Brandeis also had a profound impact on expanding the scope of the Fourth Amendment and developing a constitutional right of privacy. In Olmstead v. United States (1928), the Court by a vote of 5-4 upheld the conviction of a Seattle bootlegger for violating the Prohibition-era Volstead Act, based on evidence obtained by tapping his telephones without a warrant. The Court held that since there was no physical entry into the defendant’s home or office, there was no search and there was no seizure.
Justices Butler, Holmes, and Brandeis each filed a dissent, but according to Urofsky it was Brandeis’s that would have “a profound and lasting impact on Fourth Amendment jurisprudence” and would constitute “one of the landmark dissents in constitutional history.” Brandeis began by condemning the government’s lawlessness. “Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen.” Then he explained why, for purposes of the warrant requirements of the Fourth Amendment, collecting evidence of one’s telephone conversations was as much a search and seizure as entering one’s home or office. Again he invoked that intentions and aspirations of the Founders when they wrote the Constitution and the Bill of Rights.
They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the 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 lived to see Congress prohibit the use of wiretapping evidence in federal courts in the Communications Act of 1934. In 1967, the Court overturned Olmstead and fully adopted Brandeis’s position. In 2001, Justice Antonin Scalia used Brandeis’s analysis to hold that federal agents could not collect evidence by use of thermal imaging to look through walls to detect marijuana.
Although the dissents Holmes and Brandeis wrote seemed like “voices in the wilderness during much of their tenure,” Urofsky suggests that “in the end the Court and the society accepted their views,” and the discourse they engendered “pointed the way to the future.”
Urofsky asks whether long-standing and outspoken dissents will have an impact on the controversial issue of the death penalty. This is an open question. In 1976, a majority of the Supreme Court in Gregg v. Georgia upheld the death penalty, holding that capital punishment did not violate the Eighth Amendment’s prohibition on “cruel and unusual punishment” or the 14th Amendment’s promise of “equal protection of the laws.” Then and in every subsequent death penalty case, Justices Brennan and Thurgood Marshall dissented. Brennan had come to believe that the death penalty violated human dignity and that “the dignity and worth of the individual” were “the supreme value of our American democracy.” He had concluded that the death penalty was contrary to the four principles on which constitutional punishment was based: it was too severe, arbitrarily inflicted, unacceptable to contemporary standards, and excessive. Consequently, it violated “evolving standards of decency that mark the progress of a maturing society.”
Marshall agreed, and based on his own experience and years heading the NAACP Legal Defense Fund, he also knew that the death penalty was used in a discriminatory manner against “the poor, the illiterate, the underprivileged, the member of the minority group — the man who, because he is without means, and is defended by a court-appointed attorney — who becomes society’s sacrificial lamb.”
Soon Brennan and Marshall were joined by Justice Harry Blackmun, who in 1994 dissented from the Court’s denial of a stay of execution, writing that, “the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake.” From that day forward, he said he would no longer “tinker with the machinery of death.”
Urofsky observes that since Blackmun’s retirement, no one on the Court believes that the death penalty violates the Eighth and 14th Amendments. He might better have written that no one on the Court had yet disclosed the belief that the death penalty violates the Eighth and 14th Amendments, because since writing his book, two more justices have joined Brennan and Marshall.
In June, in the case of Glossip v. Gross, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, wrote a comprehensive 46-page dissenting opinion on the death penalty that presented compelling reasons why capital punishment violates the Eighth Amendment's prohibition on “cruel and unusual punishment.” Since Gregg, according to Breyer, almost 40 years of studies, surveys, and experience
strongly indicate […] [that t]oday’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use.
These changes, “taken together with my own 20 years of experience on this Court, that lead me to believe that the death penalty, in and of itself, now likely constitutes a legally prohibited ‘cruel and unusual punishment.’”
Urofsky has made a significant contribution to our understanding of the Supreme Court and the Constitution. Just as our society has benefitted immensely from the great dissenters throughout American history who have questioned orthodoxy and challenged the suffocating conformity of thought, the great Supreme Court dissents examined in this impressive book, in the words of Justice Brennan, “soar with passion and ring with rhetoric” as they “sow the seeds for future harvest.”
Stephen Rohde is a constitutional lawyer, lecturer, writer, and political activist.