TOPIC 3: Dissent and the U.S.

Supreme Court - SCOTUS

1. Dissent in the history of the U.S.

The history of the US is related to dissent. By looking at the dissent with the British
Government led to the American Revolution: it is represented in the picture called “Boston Tea
Party” on December 16, 1773.

The following examples of the dissent in the history of the US, can be interpreted in the light of
having the same pattern “of dissent”:
1. Dissent with the slavery lead to civil war.
2. Dissent with the advancement of Fascism and Nacism in Europe led to the US
involvement in the 2nd WW.
3. And defined the outcome of war and subsequent post-war recovery.
4. Dissent with the advancement of Communism led to the Cold War.
5. Dissent with racism led to the Civil Right Movement.

Something very particular about the US:

● Courts as primary resource (US): Many questions—either taking place in the private
sphere of life or referring to public aspects of citizens’ lives—are being solved in courts.
Courts are the most common way of solving any kind of conflict or questions.
● Courts are ultimate resource (Europe):
○ Private questions: courts are the last resource.
○ Public questions: legislator rather than justice.
● What does this difference say about the trust in the judicial system in the US and in
Europe? The trust in the judicial system in Europe and in the US evidently differs, in
general terms. It should be noted that in Europe there are heterogeneous countries with
different legal systems, same as the different Federal States in the US.

US Constitution: 1st Amendment - “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”

→ Dissent-friendly formulation: The Government should not provoke nor hinder dissenters.
The 1st Amendment is the most commonly used when formulating dissents. Whatever
happens, individuals have the right to express their discontent, and should not be silenced.
Therefore the dissent is enshrined into the essence of the US And therefore into SCOTUS too…

Opinions in the SCOTUS

● Majority opinion
● Separate opinion - can be either a concurrence or a dissent:
○ Concurring opinion (concurrence): agreement with the result but not with the
legal reasoning that the majority of the court have established.
○ Dissenting opinion (dissent): is a complete and total disagreement with the
majority’s opinion, saying that the case is wrongly decided.
→ Many times concurrence is difficult to distinguish from the dissent!

2. Difference between concurrence and dissent

Difference between concurrence and dissent can be summarized as:

CONCURRENCE DISSENT

● Written by Justice who agrees with the ● Written by a Justice who disagrees
result reached by the majority, but not with the majority completely and
with the legal reasoning that led to this wants to make his disagreement clear,
result: explicit and known to the society.
○ Explains his alternative way of legal
reasoning to get to the same result,
or points out his reasoning.

Concurrence or concurring opinion → help to limit majority’s opinion and understand it:
● Useful for lower court judges to avoid (in their opinion) overly broad or overly narrow
interpretations of the majority.
● “I know it when I see it”: Justice Steward concurrence in Jacobellis v. Ohio (1964) with
reference to ”hardcore pornography”. He considered it a difficult concept to define,
however he could recognize it when he saw it.

Concurrence sometimes may go beyond the majority opinion (amplifying the interpretations
without modifying the previous ones):
Washington v. Glucksberg (1997): the case of physician-assisted suicide:
● Unanimous opinion that a a right to assisted suicide in the United States was not protected
by the Due Process Clause
● However: 5 Justices wanted to go further, although agreeing that such a right did not exist.
○ Justice O’Connor: this ruling does not mean that a physician cannot prescribe a
painkilling medication even if it hastened death; however it is not legally identified
as “assistance to suicide”.
○ Justices Stevens, Souter, Ginsburg, Breyer: future cases of terminally ill patients
might be decided differently.
These positions leave the door open for further wide interpretations of this right.
Dissent and concurrence within the deliberation process of majority’s opinion:

● Once the Justices have voted, the Chief (or Senior) Justice assigns one Justice to write
the opinion: this Justice has to be careful not make generalizations that could push one
or more Justices to change their mind. They are writing the ruling taking into account the
perspective of the resting 5 justices.
● This is why the majority opinions usually are:
○ Precise, focusing on specific facts and not making overbroad statements.
Differently from dissents and concurrences when the Justice speaks only for
himself and therefore is much more free to express his/her thoughts.
● Other Justices, once they get the majority opinion, write their opinions, that is,
concurrences and dissents, which can convince other Justices to change their mind.
And consequently, reverse the majority vote.
● The Justice writing majority opinion has to take the dissent or concurrence into account
and include it into the opinion.
○ Of course it depends on the majority: if it is 5:4 then the Justice will be more
inclined to accommodate suggested changes than (s)he would be in case the
opinion relies on a 6:3 majority vote.
● This is also the reason why usually it is the least convinced Justice of the majority who is
in charge of this task:
○ He is closest to the dissenters.
○ However if the dissent goes against the very “heart” of the majority’s opinion,
then it cannot be accomodated.
○ If dissent or concurrence is included into the majority's opinion, then they are
withdrawn and do not become public.

3. Types of dissent: dissent as positive or negative phenomenon.

To write a dissent so as not to have to write one: Sometimes Justices write a draft dissent so as
to show the rest of the SCOTUS what his/her final version of dissent could look like, were his
or her arguments not incorporated into the majority opinion.

① There are two positions on the dissent in SCOTUS: Dissent is positive

● Naturality of the dissent: difficulty and controversy of cases make it natural that these
cases continue to be so among the Justices of SCOTUS.
● Independence of Justice: possibility to those, who think differently from the majority
to explain their position: dissent is the possibility of being heard, to voice one’s
concerns about a particular decision. A Justice is free to agree or disagree.
● Utility for future cases:
○ But not necessarily: many desents—as many majority opinions— have been
forgotten and have left no trace in the evolution of legal thought. And this is
positive too.
● Dissent is inherent in the very idea of democracy and is its safeguard:
 ○ Dissent is not part of totalitarian regimes. However there are democratic
countries were the courts speak in one voice and dissents are not made public
(Austria, France, Italy):
■ European Court of Human Rights allows dissent
■ European Court of Justice does not allow dissent
● Hardest cases divide society, and justices too: affirmative action, same-sex marriage,
physican-assisted suicide, right to die, privacy, death penalty… Wouldn’t it be strange
that the questions that raise such hot debates in society would not raise the same hot
debates in the SCOTUS?

② There are two positions on the dissent in SCOTUS: Dissent is negative

● The SCOTUS—because of its importance—has to speak in one voice, that is, have a
unanimous opinion on the case. Breaks the unanimity of the Supreme Court, but of
the position each Justice has.
● Fragmented opinions weaken the SCOTUS: there are opinions to defend any position
and this works against the authority of SCOTUS:
○ Promotes the idea that law is uncertain and not even justices themselves agree
on what it means. → Therefore the dissents should be rare and the unanimity of
SCOTUS should be the rule. However, this is not the case.
● Dissent is useful only to the losing party who feels that it was not completely wrong.
Therefore, writing dissent continuously makes Justices lose credibility.
● Some dissents have turned into personal attacks on the majority:
○ Roscoe Pound called it “heated dissent”: a dissent where emotions take over the
intellectual argument and offend the rest of the Court.
○ Among others, Justice Scalia and his “vitriolic dissents” often described by
scholars as “harshly worded,” “sarcastic,” “divisive,” “acid,” “corrosive,” “hostile,”
“degrading,” “brutal,” ”torrent of outrage,” “vituperative,” “nasty,”...
● The question is to what extent the lack of respect can be acceptable: the Justices as
an example of respectful debate and dissent.
○ Example of Justice Scalia’s questionable language: “Today’s decision is a
potential cornucopia of waste. Since its reasoning cannot possibly be followed
where it leads, the jurisdiction of the Claims Court has been thrown into chaos.
On the other hand, perhaps this is the opinion’s greatest strength. Since it
cannot possibly be followed where it leads, the lower courts may have the sense
to conclude that it leads nowhere, …” (Bowen v. Massachusetts (1988)). → He’s
saying that the majority's opinion is hard to follow.

⇨ What makes a good/significant/strong dissent?

A dissent has a value when it highlights what the dissenting justice considers to be:
1. Weakness(es) of the majority opinion.
2. Faulty constitutional reasoning.
3. Failure to understand the facts of the case.
 A strong dissent is a dissent that could persuade future justices to overturn the majority’s
decision (precedent) and support this manoeuvre by reference to the dissent.

Therefore, a good dissent could invalidate the precedent or at least send a message to lower
courts and future SCOTUS that the particular question is very complicated and needs further
analysis.

”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’” (Urofsky 2017)

4. Examples of dissents: the right to freedom of thought & speech.

① US v. Schwimmer (1929) and Justice Oliver Wendell Holmes Jr.: freedom of thought
● Rosika Schwimmer immigrated to the US in 1921 and 5 years later she filed the petition
for naturalization to become a US citizen;
● However she—as convinced and active pacifist—refused to swear that she would
defend the government by the force of arms:
○ This oath (oath of allegiance) is a part of citizenship by naturalization process.
As she refused to swear, she did not get citizenship.
● The SCOTUS voted 6:3 and confirmed that she did not get citizenship correctly.
→ Either you swear or you are not getting citizenship.

⇨ Majority opinion:
● The Constitution granted control over immigration and naturalization to Congress.
● Congress has prescribed the oath of allegiance in its current form. → Congress has a
legitimate interest to make sure that naturalized citizens too will be willing to defend
their country if need be:
○ Therefore, if you do not swear the oath of allegiance, you do not become a citizen.

⇨ Justice Holmes’s dissent:

● Majority’s arguments lack logic, because women were not allowed into armed forces,
so Ms. Schwimmer (over 50 years of age) surely would not be allowed to join armed
forces even if she wanted to.
● “If there is any principle of the Constitution that more imperatively calls for attachment
than any other it is the principle of free thought: not free thought for those who
agree with us, but freedom for the thought that we hate”. The case was overruled by
SCOTUS in 1946.

② Justice Brandeis in Whitney v. California (1927): greatest dissent ever written

A concurrence that is in fact a dissent and that shaped the understanding of free speech and its
meaning and purpose in a democratic societies for the forthcoming decades.
Whitney v. California (1927): facts
● Ms. Whitney was convicted for organizing Communist Labour Party in California.
● According to California Criminal Syndicalism Act it is a felony to organize or to knowingly
join an organization that advocates for crimes, sabotage or acts of violence.
● Ms. Whitney argued that communist party never engaged in any criminal activity,
nevertheless she was found guilty.
● SCOTUS confirmed the lower court’s decision.
● Brandeis choose to concur rather than dissent because of technical aspects:
○ Because of the way the petition to the SCOTUS was presented it did not directly
address free speech, however Brandeis saw the need to explain his disagreement
with the SCOTUS’s restrictive interpretation of free speech.

Brandeis concurrence/dissent
Those who won our independence believed that the final end of the State was to make men
free to develop their faculties, […]. They valued liberty both as an end, and as a means. They
believed liberty to be the secret of happiness, and courage to be the secret of liberty. 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; that the greatest menace to freedom is an inert people; that
public discussion is a political duty, and that this should be a fundamental principle of the
American government.
They recognized the risks to which all human institutions are subject. But they knew that order
cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage
thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate
menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed
grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones.

[…] Recognizing the occasional tyrannies of governing majorities, they amended the
Constitution so that free speech and assembly should be guaranteed. Fear of serious injury
cannot alone justify suppression of free speech and assembly. Men feared witches and burnt
women. It is the function of speech to free men from the bondage of irrational fears.

To justify suppression of free speech, there must be reasonable grounds:

● to fear that serious evil will result if free speech is practiced.
● to believe that the danger apprehended is imminent.
● to believe that the evil to be prevented is a serious one.

But even advocacy of violation, however reprehensible morally, is not a justification for
denying free speech where the advocacy falls short of incitement and there is nothing to
indicate that the advocacy would be immediately acted on.
The wide difference between advocacy and incitement, between preparation and attempt,
between assembling and conspiracy, must be borne in mind […] To courageous, self-reliant
men, with confidence in the power of free and fearless reasoning applied through the
processes of popular government, no danger flowing from speech can be deemed clear and
present unless the incidence of the evil apprehended is so imminent that it may befall before
there is opportunity for full discussion.

If there is time to expose through discussion the falsehood and fallacies, to avert the evil by the
processes of education, the remedy to be applied is more speech, not enforced silence.
Only an emergency can justify repression […] Such, in my opinion, is the command of the
Constitution. It is therefore always open to Americans to challenge a law abridging free
speech and assembly by showing that there was no emergency justifying it.

That is to say that according to Brandeis:

● The most important position in democracy is that of individual citizens and not that of
appointed or elected officials.
● Being a citizen means to have privileges and responsibilities:
○ One of such responsibilities: to participate in debate over public policy. Hence no
policy (reform, change, rule, …) is possible unless the citizens understood and
supported it.
○ So as the citizens could make an informed judgement, they have to hear all the
parties and therefore opposing parties have to have a right to expose their ideas:
therefore the citizens have a right to hear conflicting views.
○ Then citizens, through their elected representatives, can translate their views into a
certain policy (reform, …).

The importance of Brandeis concurrence:

This concurrence continues to be cited to refer to:
● the extent of the protection guaranteed by the First Amendment and
● the idea that Speech Clause favors more than less language
It became a standard for free speech which is still and continuously debated.