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Why Dissent?

July 2, 2008

Mark Tushnet

The end of the Supreme Court’s term gives me a chance to reflect on some of the dissents that the justices wrote. The question I want to explore – which I deal with in some of the essays accompanying the opinions I’ve reprinted in I Dissent – is this: Why bother to dissent, especially at great length?

Let’s begin with a case that was almost overlooked because it was decided on the day of the Second Amendment decision. A majority on the Court struck down the so-called Millionaire’s Amendment to the federal campaign finance law. The Amendment increased the amount donors could contribute to campaigns by people running against millionaires who financed their own campaigns. The obvious purpose was to do something to equalize the playing field between rich and not-as-rich candidates. The Court said – as it had in the past – that you can’t limit campaign contributions in the name of political equality. So the Amendment was unconstitutional.

Justice Stevens wrote a dissent. Its first paragraph included the line, “I completely agree with the [lower court’s] opinion,” but it then went on for nine more pages. If the lower court was completely correct, why bother to ramble on?

Justice Stevens wrote a dissent. Its first paragraph included the line, “I completely agree with the [lower court’s] opinion,” but it then went on for nine more pages. If the lower court was completely correct, why bother to ramble on? I’ve been doing some research on the Supreme Court in the 1930s, and dissenting opinions then rather often simply said, “I would affirm on the basis of the lower court’s opinion,” or the like. Why not do the same in this case?

Justice Stevens’s dissenting opinion actually deals with something else. The lower court might have been correct, given existing law. But Justice Stevens wanted to criticize existing law. He argued that the Court went off the tracks a while ago when it rejected political equality as a basis for campaign finance regulation. Fair enough, but again, why bother? It’s unlikely that Justice Stevens, who is almost ninety years old, will get a chance to implement his views. He has to be staking out a position for his successors.

And maybe that’s a good thing. For the next decade, the Court’s majority might not change existing law about political equality and campaign finance. But Justice Stevens’s dissent will help people understand that there are respectable voices who disagree with the majority’s position. In time – not soon, but eventually – enough new justices might come to the Court that Justice Stevens’s position will prevail. But the position might fade into obscurity unless someone continued to re-state it – necessarily in dissent.

one reason for dissenting is to stake out a claim for the future.

So, one reason for dissenting is to stake out a claim for the future. Another, less attractive I think, is illustrated in Justice Scalia’s dissent in the Guantanamo case. The most quoted line from the dissent is that Americans will die as a result of the Court’s decision. Put aside the point that, for someone who says he is an originalist in constitutional interpretation, the fact that Americans might die as a result of a constitutional interpretation ought to be completely irrelevant. (After all, Justice Scalia was dissenting from an opinion that can be read to make consequences relevant, and he might have been taking the majority on its own terms even though, were he in charge, he wouldn’t have used those terms.)

If Justice Scalia had some special authority in matters of national security, his predictions about outcomes might have some authority behind them. But he doesn’t.

Justice Scalia’s dissent was, I think, written in order to be quoted. He was throwing red meat to the Court’s critics – which they avidly gobbled up. I’ve said that this seems to me a less attractive reason for dissenting. Why? There’s no particular reason for a judge to make the point. The majority’s critics outside the Court could do it on their own, and undoubtedly would have. If Justice Scalia had some special authority in matters of national security, his predictions about outcomes might have some authority behind them. But he doesn’t, and indeed one fulcrum of his dissent is that judges don’t have that kind of expertise.

So: Justice Scalia’s dissent was not much different from an op-ed column by someone who didn’t like the majority’s decision, appealing to people today who don’t like what the Court did. In contrast, Justice Stevens’s dissent operates within the legal system, appealing to judges in the future and urging them to change the law.

I’m not entirely sure that the distinction between operating within the legal system (over time) and appealing outside it covers the whole territory of distinguishing between good reasons for dissenting and bad ones, but I think it’s a start.

Mark Tushnet is the author of I Dissent: Great Opposing Opinions in Landmark Supreme Court Cases. Tushnet is William Nelson Cromwell Professor of Law at Harvard Law School. Previously a professor of law at Georgetown University and University of Wisconsin, Tushnet is the author of numerous books, including A Court Divided: The Rehnquist Court and the Future of Constitutional Law.

Copyright 2008 Mark Tushnet

This post originally appeared on Beacon Broadside.

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