From seriatim to consensus and back again: A theory of dissent

Supreme Court Review

Volumn , Issue , 2007, Pages 283-344

  Todd Henderson, M ^a  

^a UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

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EID: 47149107986     PISSN: 00819557     EISSN: None     Source Type: Book Series    
DOI: None     Document Type: Review

References (300)

1. See Hope Yen, Roberts Seeks Greater Consensus on Court, Wash Post (May 21, 2006), available at http://www.washingtonpost. com/wp-dyn/content/ article/2006/05/21/AR2006 052100678.html;
2. see also, Chief Justice John Roberts, Address to Georgetown University Class of 2006 (May 21, 2006), available at http://www.law.georgetown.edu/ webcast/eventDetail.cfmPeventID=144.
3. See Address to Georgetown University, Class of 2006 (cited in note 1).
4. See Part II.C. As discussed below, Marshall used leadership, example, and other techniques to discourage dissent and build a collegial and consensus Court. There was some dissent, but as shown herein, it was trivial.
5. Learned Hand believed that dissent "cancels the impact of monolithic solidarity on which the authority of a bench of judges so largely depends." Learned Hand, The Bill of Rights 72 (1958).
6. Burnet v Coronado Oil & Gas Co., 285 US 393, 406 (1932) (Brandeis, J, dissenting).
7. In an interview, Stewart characterized dissents in this way, quoting an unnamed law professor of his. See Robert Bendiner, The Law and Potter Stewart: An Interview with Justice Potter Stewart (American Heritage), available at http://www.americanheritage.com/articles/magazine/ah/1983/1/1983.
8. See Northern Sec. Co. v United States, 193 US 197, 400 (1904) (opinion of Justice Oliver Wendell Holmes, the "Great Dissenter").
9. See Yen, Roberts Seeks Greater Consensus on Court (cited in note 1).
10. See William J. Brennan Jr., In Defense of Dissents, 37 Hastings L J 427, 438 (1986) (defending dissents on multiple grounds and calling dissent a "duty");
11. see also Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 NYU L Rev 1185 (1992) (presenting several arguments justifying the current practice of frequent dissenting opinions); Ruth Bader Ginsburg, Remarks on Writing Separately, 65 Wash L Rev 133 (1990) (same).
12. Cass Sunstein makes a more general case for the value of dissent in all aspects of decision making in a recent book. See Cass R. Sunstein, Why Societies Need Dissent 210-11 (2006) ("Organizations and nations are far more likely to prosper if they welcome dissent and promote openness.").
13. Brennan, 37 Hastings L J at 438 (cited in note 9) ("Through dynamic interaction among members of the present Court and through dialogue across time with the future Court, we ensure the continuing contemporary relevance and hence vitality of the principles of our fundamental charter.").
14. Charles Evans Hughes, The Supreme Court of the United States 67-68 (1928).
15. Here T draw on Foucault's "power/knowledge" dynamic. See Michel Foucault, Power/Knowledge: Selected Interviews and Other Writings, 1972-1977 (1980).
16. Hand, The Bill of Rights (cited in note 4).
17. The power of the Supreme Court manifests itself in many forms, including in structural prestige and the reputation of individual Justices, but is expressed through only one form: the written legal opinion.
18. As is the case for automobiles, architecture, toothbrushes, and most other things in life, for legal opinions, form follows function. Architect Louis Sullivan of the Chicago School made the phrase "form follows function" famous by christening a new style of architecture for skyscrapers that emphasized exposing the structural realities of buildings instead of hiding them behind adornments. See Louis Sullivan, The Tall Office Building Artistically Considered, Lippincott's Magazine (Mar 1896).
19. This raises the obvious question of how we can speak of the goals and objectives of "the Court" when it is composed of individuals and when we normally don't think of multimember bodies in this way. The idea here is that the Court is just a proxy for the overall sociological and subconscious forces at work.
20. Foucault would call this a "genealogical" study of dissent, Genealogy is the process of looking to the past for an explanation or greater understanding or appreciation of the present. By looking at the reasons (underlying or overt) dissent is encouraged, tolerated, or squashed at a given time by courts, genealogy may provide us with the perspective to call the conventional wisdom about dissent into question.
21. The evolution of appellate discourse may be roughly analogous to the theory of "punctuated equilibrium" in evolutionary biology. See Niles Eldredge and Stephen Jay Gould, Punctuated Equilibria: An Alternative to Phyletic Gradualism, in T. J. M. Schopf, ed, Models in Paleobiology, 82-115 (1985). Changes in style, tone, approach, length, etc. occur gradually over the years, and then there is a sudden change that precipitates a dramatic reordering of the predominate discourse. In this view, the changes of Mansfield and Marshall were the legal equivalents of the asteroids that destroyed the dinosaurs and the trilobites. The theory has been applied in the public policy context.
22. See Frank Baumgartner, et al, The Destruction of Issue Monopolies in Congress, 87 Am Pol Sci Rev 673 (1993) (showing that government policies in some areas are characterized by long periods of stability, which are disrupted by rare but significant shocks).
23. Lawrence M. Friedman, A History of American Law 29 (1985) ("In modern times, law is an instrument; the people in power use it to push or pull toward some definite goal.").
24. H. L. A. Hart, The Concept of Law 138 (1961) ("A supreme tribunal has the last word in Saying what the law is and, when it has said it, the statement that the court was 'wrong' has no Consequences within the system: no one's rights or duties are thereby altered.").
25. Here we see the intuition of Max Weber, whose famous speech to Munich University students, Politics as a Vocation, introduced the concept that the state has a monopoly on the legitimate use of physical violence. See Daniel Warner, An Ethic of Responsibility in International Relations 9-10 (1991).
26. It is well known that religious or pseudo-religious entities have historically been rivals of law. See, for example, Friedman, History of American Law at 52, 65 (cited in note 20) ("[C]hurches . . . worked ... as rivals of courts."). In England, this tradition survived well into the nineteenth century, and it is arguably still true in some advanced nations, and definitely true in other societies.
27. See id at 202 ("In England [in the 1800s], ecclesiastical courts had jurisdiction over marriage and divorce, and the church had an important role in family law.").
28. Foucault, Power/Knowledge at 201 (cited in note 13).
29. Id. at 131.
30. This concept of "truth" is divergent from any conventional definition. Historically the word "truth was synonymous with "fact" or "actuality." In this traditional world, truth is neutral and reveals itself only when the corrupting forces of power are absent. Perhaps this understanding of truth explains why for most of Anglo-American history legal judgments were made in public, openly and extemporaneously by each judge, where there was no possibility of "backroom dealing." This type of discourse was used under the guise of trying to avoid (or show) the influence or coercion of power. But truth cannot exist independently of power. In the police station, the courtroom, the statehouse, the workplace, and throughout modern society, law is the power that enables the production of knowledge and the determination of truth.
31. The law does more than allow truth to be revealed in a certain way. Law is one of the most powerful discourses in that it claims not only to reveal the truth, like science, but also to consecrate it as the Law, the sole source of legitimate physical power. In this context, an appellate opinion is a source of truth and a representation of power, not so much as an evaluation of the "facts" of a particular case, but rather what "facts" are acceptable within the legal grid that the court creates. It is up to the lower courts to determine the truth, but the appellate court enables the truth to be discovered in a particular way.
32. This is not exactly correct. Burning a cross and burning a flag are both protected to some extent; what differentiates the treatment of these two acts of speech is the existence of threat in the former case. Cross burning can be prohibited only when it is a threat. In theory, the state could prohibit flag burning if it was viewed as a threat, but this is much more difficult to imagine. The end result in most cases will be that burning a flag is OK, while burning a cross is not,
33. See Michel Foucault, Discipline and Punish 187-92 (1975) (using hospitals as a prototypical example of the growth of normalization through record keeping and other forms of documentary power).
34. Continental law (and the law in Japan, China, and other non-Anglo-American countries) is not made by judges but is contained mostly in written statutory codes. In the common law system, in contrast, a great deal of law is made by the opinions of judges. Friedman, History of American Law at 22 (cited in note 20).
35. For an analysis of the difference between these styles, see Ginsburg, Speaking in a Judicial Voice at 67 (cited in note 9);
36. Ginsburg, Remarks on Writing Separately at 133 (cited in note 9).
37. This analysis is true, of course, only in a legal system in which judges express their differences in public through concurring and dissenting opinions. In France and Germany, all opinions carry the same discursive impact because disagreement is not published.
38. See, for example, William H. Rehnquist, The Supreme Court 40 (2001).
39. William Murray, who practiced before the Court of Chancery in the mid-eighteenth century (when reporting was still poor in equity courts), wrote: "It is a misfortune attending a court of equity, that the cases are generally taken in loose notes, and sometimes by persons who do not understand business, and very often draw general principles from a case, without attending to particular circumstances, which weighed with the court in the determination of these cases." James Oldham, English Common Law in the Age of Mansfield 366 (2004).
40. The first abridgment was made by Nicholas Statham, Baron of the Exchequer under Edward IV, in around 1470. 8 The Cambridge History of English and American Literature, chap XIII sec 9 (1907) ("As the number of the Year Books increased, it became convenient to make classified abridgments of their leading cases. The first of these was made, about 1470, by Nicholas Statham, baron of the exchequer under Edward IV").
41. Edward Coke, who served as Chief Justice of the Court of Common Pleas and then the King's Bench, became the first English jurist to publish his opinions, in 1609. His cases became Volume I of the English Reports. These were his personal account of the cases, and they are generally considered to be misleading, often reporting what he wanted the result or reasoning to be instead of what it actually was. See, for example, J. H. Baker, New Light on Slade's Case, 29 Cambridge Law J 213 (1971) (showing how Coke's reporting introduced inaccurate distortions into the law).
42. See Cecil H. S. Fifoot, Lord Mansfield 89 (1936).
43. Thomas Jefferson, a strong critic of the "opinion of the court," wrote: "An opinion is huddled up in conclave, perhaps by a majority of one, delivered as if unanimous, and with the silent acquiescence of lazy or timid associates, by a crafty chief judge, who sophisticates the law to his own mind, by the turn of his own reasoning." Letter from Thomas Jefferson to Thomas Ritchie (Dec 25, 1820), in Paul L. Ford, ed, 10 The Writings of Thomas Jefferson 169, 171 (1899).
44. Murray served as Lord Chief Justice from 1756 to 1788. The King's Bench was one of three common law courts in England at the time. Although there were rival courts of various royal and nonroyal statures, the King's Bench was the most important common law court in the land. Appeals were possible but largely unknown, and therefore the King's Bench had the ultimate say in most matters, especially those of a commercial nature.
45. Friedman, History of American Law at 133 (cited in note 20). Mansfield recognized the importance of the law merchant, which was based largely on commercial customs in practice in some areas since the Middle Ages, and incorporated it into general rules of application within the larger common law.
46. Oldham, Law in the Age of Mansfield at 10 (cited in note 34).
47. Edmund Heward, Lord Mansfield: A Biography of William Murray, 1st Earl of Mansfield (1705-1793) Lord Chief Justice for 32 Years 99 (1979);
48. Friedman, History of American Law at 28 (note 20) ("There were many types of merchant courts, including the colorful courts of piepowder, a court of the fairs where merchants gathered."). Recent scholarship casts doubt on the view that the law merchant was a system of private ordering among merchants that was somehow superior to modern commercial law.
49. See, for example, Emily Kadens, Order Within Law, Variety Within Custom: The Character of the Medieval Merchant Law, 5 Chi J Intl L 38, 63 (2004) (describing the law merchant as a "layer of laws and practices that included legislative mandates, broad-reaching customs, and narrow trade usages").
50. For a modern example, see Lisa Bernstein, Private Commercial Law in the Cotton Industry: Creating Cooperation Through Rules, Norms, and Institutions, 99 Mich L Rev 1724 (2001) (describing the private commercial law used by merchants in the cotton industry).
51. In the famous case Luke v Lyde, Lord Mansfield cited to various laws of the sea, including Rhodian Laws, the Consolato del Mare (Barcelona), and the laws of Visby. See Bridget Murphy, Luke v Lyde, 2003 Auckland U L Rev 2 (2003).
52. Edward Coke, who preceded Lord Mansfield on the King's Bench by 150 years, declared in 1608 that "the Law Merchant is part of this realm," see 1 Edward Coke, Institutes of the Laws of England 182a (1648), but this did not mean that customary commercial law was fully incorporated into the common law or that common law courts stepped aside and let merchant courts settle disputes. A century and a half after Coke made this statement the common law was largely ignorant and disrespectful of the law merchant.
53. See W. S. Holdsworth, The Rules of Venue, and the Beginnings of the Commercial Jurisdiction of the Common Law Courts, 7 Colum L Rev 551, 561-62 (1914) ("It was not till the common law obtained in Lord Mansfield a judge who was a master of [foreign writings on commercial customs] that the rules deducible from the many various commercial customs which had come before the courts were formed into a coherent system, and completely incorporated with the common law.").
54. See Heward, Lord Mansfield at 100-101 (cited in note 42).
55. Fifoot, Lord Mansfield at 9 (cited in note 37).
56. See Heward, Lord Mansfield at 99-101 (cited in note 42).
57. See P. Marshall, The Eighteenth Century (1988) 53 (noting that during the period 1697 to 1815 exports increased much faster than population growth or economic growth as a whole).
58. See Fifoot, Lord Mansfield at: 4 (cited in note 37).
59. Murphy, Luke v Lyde at 4 (cited in note 44).
60. John Marius, Advice Concerning Bills of Exchange (Early English Books Online, Electronic Reproduction, Ann Arbor, MI, 1999).
61. John D. Cary, An Essay on the State of England in Relation to Its Trade (printed by W. Bonny, 1695, Early English Books Online, Electronic Reproduction, Ann Arbor, MI, 1999) (advocating "Courts of Merchants ... for the speedy deciding all differences relating to Sea Affairs, which are better ended by those who understand them, than they are in Westminster-Hall.");
62. see also Josiah Child, A Discourse About Trade (printed by A. Sowie, 1689, Early English Books Online, Electronic Reproduction, Ann Arbor, MI, 1999) ("it is well if, after great expenses of time and money, we can make our own Counsel (being Common Lawyers) understand one half of our Case, we being amongst them as in a Foreign Country.").
63. For example, during the time when Lord Mansfield was Chief Justice the number of cases involving promissory notes or bills of exchange increased about 100 percent per year, over three times the increase in cases overall. Heward, Lord Mansfield at 53 (cited in note 42).
64. See Patrick Colquhoun, A Treatise on the Police of the Metropolis 383-88 (5th ed) (describing 9 supreme courts, 4 ecclesiastical courts, 17 courts for the City of London, 8 courts for the City of Westminster, 14 courts for the part of the city lying in the County of Middlesex, 8 courts in the Borough of Southwark, 18 courts for small debts, 1 court of oyer and terminer, 4 courts of general and quarter sessions of the peace, 10 courts for the police petty matters, and 5 corners' courts. These were overseen by 753 judges. Id at 389. This does not include the innumerable merchants' courts, private arbitration proceedings, and other methods for resolving disputes.
65. These three courts were the primary source of the common law during this period, despite being responsible for only a small percentage of cases. See Oldham, Law in the Age of Mansfield at 12 (cited in note 34).
66. These courts, comprised of four judges each, had overlapping jurisdiction, and therefore competed for cases. As Daniel Klerman argues in a recent paper, competition was fierce, since judges were paid by the case. See Daniel M. Klerman, Jurisdictional Competition and the Evolution of the Common Law, 74 U Chi L Rev 1179, 1189-90 (2007).
67. Oldham, Law in the Age of Mansfield at 366 (cited in note 34) ("Decisions from another court would be looked to only as advisory or as a means of persuasion.").
68. Id at 365.
69. William Murray, who practiced before the Court of Chancery in the mid-eighteenth century (when reporting was still poor in equity courts), wrote: "It is a misfortune attending a court of equity, that the cases are generally taken in loose notes, and sometimes by persons who do not understand business, and very often draw general principles from a case, without attending to particular circumstances, which weighed with the court in the determination of these cases."
70. Id at 366.
71. See Klerman, Jurisdictional Competition at 9-11 (cited in note 57) (showing that fees paid to judges per case were substantial and sufficient to bias their decisions in favor of plaintiffs, who chose the venue).
72. Id.
73. Friedman, History of American Law at 95 (cited in note 20).
74. Id at 58 ("The merchant's idea of a good legal system was one that was rational and efficient, conforming to his values and expectations-traits that neither lay justice neither the baroque extravagances of English procedure [at law courts] supplied.").
75. Hamilton v Mendes, 2 Burr 1214 (1761).
76. Friedman, History of American Law at 18 (cited in note 20). Mansfield wanted not only to take cases from other courts, but also from the legislature. See Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 211 (1997) (describing Mansfield as engaged in a "project of defending . . . traditional modes of adjudication against the perceived vices of legislation.").
77. Pelly v Royal Exchange Assurance Co., 1 Burr 341, 347 (1757).
78. Oldham, Law in the Age of Mansfield at 365 (cited in note 34).
79. Id at 124.
80. Milles v Fletcher, 1 Doug 231, 232 (1779).
81. Mansfield's application of equitable principles to commercial disputes was extremely controversial. In fact, Mansfield's successors - such as Kenyon, Thurlow, and Eldon - all opposed this reform, and it was not until 1873 that the Supreme Court of Judicature was established and endowed with both equitable and legal powers. See Judicature Act of 1873, § 24.
82. See James Oldham, Review: From Blackstone to Bentham: Common Law versus Legislation in Eighteenth-Century Britain, 89 Mich L Rev 1637, 1645 n 32 (1991).
83. Luke v Lyde, 2 Burr 882, 887, 97 Eng Rep 614, 617-18 (KB 1759).
84. Fifoot, Lord Mansfield at 13 n 1 (cited in note 37).
85. Heward, Lord Mansfield at 173 (cited in note 42). Other factors contributed to the success of the King's Bench at attracting cases to the court. Mansfield was a very hard worker and, by all accounts, operated his court with a ruthless efficiency.
86. See Oldham, Law in the Age of Mansfield at 5 (cited in note 34) ("[H]e took particular care that this should not create delay or expense to the parties; and therefore he always dictated the case to the Court, and saw it signed by counsel, before another case was called; and always made it a condition in the rule, that it should be set down to be argued within the first four days of the term.").
87. According to Heward, the number of commercial cases (e.g., "goods sold and delivered," "money," "promissory notes," "policy of assurance," and "bills of exchange") grew 105 percent, from 217 during the period 1761-65 to 444 during the period 1776-80, whereas the total number of other cases grew 75 percent (134 to 235) over the same periods.
88. See Heward, Lord Mansfield at 105-06 (cited in note 42).
89. Trover, or an action for the taking of property, went from 32 to 44, trespass from 7 to 16.
90. See id.
91. See William Blackstone, 2 Commentaries on the Laws of England *461.
92. Lickbarrow v Mason, 2 TR 63, 74; 100 ER 35 (1787).
93. Oldham, Law in the Age of Mansfield at 107 (cited in note 34).
94. Id at 124, 163.
95. Id at 365, 368.
96. Id at 365 ("[Mansfield] strove with considerable success to absorb the customs of merchants into the common law,").
97. Until recently they delivered their opinions seriatim, each Lord reading aloud his judgment and the reasons for it. The Lords no longer routinely deliver five separate opinions, although they do more frequently announce separate opinions than does our Supreme Court, J. H. Baker, Introduction to English Legal History 204-11 (1990).
98. See George T. Kenyon, The Life of Lloyd, First Lord Kenyan, Lord Chief Justice of England 391 (1873) (noting that Kenyon favored the traditional common law approach over Mansfield's attempt to fuse law and equity and discern abstract theories from cases);
99. see also John Lord Campbell, The Lives of the Chief Justices of England: From the Norman Conquest Till the Death of Lord Tenterden 96 (1874) (noting Kenyon's preference for a traditional common law, case-by-case approach).
100. See Kenyon, The Life of Lloyd at 390-91 (cite in note 85). Here we see a similarity with the views of Chief Justice Roberts and his views about the role of the Supreme Court. Roberts also appears to be trying to innovate in opinion-delivery practices to achieve his goals, just as Kenyon did.
101. See Part III.B.
102. See id at 391 (noting that Kenyon favored the traditional common law approach over Mansfield's); see also Campbell, Lives of the Chief Justices of England at 96 (cited in note 85).
103. See Campbell, Lives of the Chief Justices of England at 96 (cited in note 85).
104. See Kenyon, The Life of Lloyd at 166 (cited in note 85).
105. The Law Lords, who serve as the Supreme Court of Great Britain in some cases, routinely delivered opinions seriatim, with each of the five judges announcing an individual judgment with reasons. See Louis Blom-Cooper and Gavin Drewry, Final Appeal: A Study of the House of Lords in Its Judicial Capacity 81-82, 523 (1972). This practice recently waned. See also Paterson, The Law Lords 109-10 (1982) (noting that the Lords no longer routinely deliver five separate opinions).
106. Friedman, History of American Law at 112 (cited in note 20) ("To fill the gap [in American law at the beginning], English materials were used, English reports cited, English judges quoted as authority.").
107. See Scott D. Gerber, ed, Seriatim: The Supreme Court Before John Marshall (1998); s
108. ee also David P. Currie, Review of Seriatim: The Supreme Court Before John Marshall, 105 Am Hist Rev 1301, 1301 (2000) (noting that "the justices of the time deliver[ed] their opinions seriatim.").
109. Letter from Thomas Jefferson to Justice William Johnson (Oct 27, 1822), in Merrill D. Peterson, ed, Thomas Jefferson: Writings 1460-63 (1984).
110. Id. Mansfield was a hero to many early colonial lawyers, so it is not surprising that his experiment with unanimous, anonymous opinions would be something they were willing to try. See Friedman, History of American Law at 109 (cited in note 20) ("One of the cultural heroes of the American legal elite was England's Lord Mansfield.").
111. Id.
112. See Donald G. Morgan, The Origin of Supreme Court Dissent, 3 Wm & Mary Q 353, 354 (1953) ("In Virginia . . .Judge Pendleton, taking Mansfield as his model, had instituted the secret, unanimous opinion in the state bench; his successor, Judge Roane, had abolished the practice.").
113. Letter from Thomas Jefferson to Spencer Roane (Sept 6, 1819), in Paul Leicester Ford, ed, The Works of Thomas Jefferson (1904-5).
114. See generally Richard E. Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic (1971).
115. See generally James F. Simon, What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States (2003). Jefferson and Marshall battled repeatedly over the extent of judicial power in the early Republic.
116. See, for example, id at 285 (noting that Jefferson criticized Marshall's opinion in Cohens v Virginia, writing to Judge Spencer Roane: "The great object of my fear is the federal judiciary. . . . Let the eye of vigilance never be closed.").
117. In this final capacity, dissenting opinions act as an "antiprecedent" that allows future judges to base their decision to overrule the previous opinion based on established legal reasoning.
118. Letter from Thomas Jefferson to James Pleasants (Dec 1821), in Paul Leicester Ford, ed, 10 The Writings of Thomas Jefferson 198-99 (1892-99).
119. Id. 103 Id.
120. Letter from Thomas Jefferson to Justice William Johnson (March 4, 1823), in Henry A. Washington, ed, 7 The Writings of Thomas Jefferson 278-79 (1853-54).
121. Letter from Thomas Jefferson to Justice William Johnson (Oct 27, 1822), in Merrill D. Peterson, ed, Thomas Jefferson: Writings 1460-63 (1990).
122. Letter from Thomas Jefferson to Justice William Johnson (June 6, 1823), in Henry A. Washington, ed, 7 Writings of Thomas Jefferson at 293-98 (cited in note 104).
123. For example, in Herbert v Wren, 11 US 370 (1813), Justice Johnson dissented from the opinion of the Court, but did not state his reasons.
124. Richard A. Posner, The Federal Courts: Challenge and Reform 174 (1996).
125. Thomas Jefferson strongly disagreed with Alexander Hamilton's characterization of the judiciary as the "least dangerous branch." See Clinton Rossiter, ed, The Federalist Papers (No 78), 392-99 (Alexander Hamilton) (1999).
126. Of course, dissenting opinions can be used to overturn "good" law too.
127. Letter from Thomas Jefferson to Justice William Johnson (Oct 27, 1822), in Merrill D. Peterson, ed, Thomas Jefferson: Writings 1460-63 (cited in note 105).
128. Lochner v New York, 198 US 45 (1905).
129. Plessy v Ferguson, 163 US 537 (1896).
130. The overruling of laissez-faire constitutionalism based on Justice Holmes's dissent in Lochner was the first time in Supreme Court history that a fundamental jurisprudential doctrine was overruled on the basis of a prior dissenting opinion. Similarly, it was Justice Harlan's lone dissent in Plessy that would later provide much of the eloquent ammunition against "separate but equal" laws. With the words "the Constitution is color blind, and neither knows nor tolerates classes among citizens," Harlan set the stage for Brown v Board of Education, 347 US 483 (1954), and much of the civil rights movement. This is the power of dissent, for good or bad.
131. As noted by Professor David Currie, seriatim opinions may be beneficial in that they may provide more information germane to predicting future outcomes. See David P. Currie, The Constitution in the Supreme Court: The First. Hundred Years, 1789-1888 14, n 61 (1985) ("Yet seriatim opinions actually may give us a better basis for predicting later decisions,").
132. 3 US 386 (1798).
133. Id at 387 (interpreting Art I, § 10).
134. Currie, Constitution in the Supreme Court at 44 (cited in note 115).
135. Id at 45.
136. Id at 55.
137. Furthermore, the circuit-riding duties of the Justices eroded the spirit and morale of the Court, contributing to its ineffectiveness. These duties were especially draining of the Justices' energy because of the difficulty of traveling during this era. When John Jay referred to a lack of "energy" on the Court, it was riding circuit that was the likely culprit. Thus Congress, state legislatures, and state courts were the dominant policy makers during this period.
138. See, for example, Ellis, Jeffersonian Crisis it 12 (cited in note 98) ("Throughout George Washington's first administration the federal judiciary tried to avoid becoming engaged in political controversies or becoming entangled in questions outside its immediate jurisdiction.").
139. Chisholm v Georgia, 2 US 419 (1793).
140. Id.
141. US Const, Amend XI ("The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state."). This was one of only two constitutional amendments that was adopted explicitly to repudiate a Supreme Court decision-the other being the Sixteenth Amendment (federal income tax), which was in response to the Supreme Court's decision in Pollock v Farmers' Loan, 158 US 601 (1895), which declared the federal income tax of 1894 unconstitutional.
142. Similarly, Robert H. Harrison refused an appointment to the Court in 1789 to become chancellor of Maryland. See Friedman, History of American Law at 133 (cited in note 20).
143. Richard Morris, John Jay, the Nation, and the Court (1967). Jay "left the bench perfectly convinced that under a system so defective it would not obtain the energy, weight, and dignity which are essential to its affording due support to the national government, nor acquire the public confidence and respect which, as a court of laws resort of the justice of the nation, it should possess." 4 The Correspondence and Public Papers of John Jay 285 (1893).
144. John Rutledge was appointed by President Washington in 1795. Rutledge participated in two cases as Chief Justice before his nomination was defeated in the Senate in December of 1795.
145. See William G. Brown, 7 The Life of Oliver Ellsworth (1905).
146. See Rakove, Original Meanings at 186 (cited in note 66) (describing the position of the Anti-Federalists as articulated by "Brutus," a New York writer responding to the Federalist Papers).
147. See id.
148. Morris, John Jay at 81 (cited in note 127). See also Robert P. Frankel, Jr., Judicial Beginnings: The Supreme Court in the 1790s, 4 History Compass 1102, 1104 (2006).
149. Jean Edward Smith, John Marshall: Definer of a Nation (1996).
150. Clinton Rossiter, ed, The Federalist Papers (No 78), at 464-65 (Alexander Hamilton) (1999).
151. The Sixth Circuit only got one additional judge. The Act also created ten new district courts, overseen by existing district court judges, who were federalists. These were the famous "midnight judges." See David R. Stras, Why Supreme Court Justices Should Ride Circuit Again, 91 Minn L Rev 1710, 1719-21 (2007) (describing the Judiciary Act of 1801 as the "Midnight Judges Act").
152. Letter from John Marshall to Charles Cotermrtb Pinckney (Mar 4, 1801 ), in 6 The Papers of John Marshall 89 (1990).
153. John Stokes Adams, ed, John Marshall: An Autobiographical Sketch 9-10 (1937).
154. Smith, John Marshall at 5 (cited in note 133).
155. J. Beveridge Jr., The Life of John Marshall 15 (1919) ("Of all the leading Federalists, John Marshall was the only one who refused to 'bawl,' at least in the public ear; and yet, as we have seen and shall again find, he entertained the gloomy views of his political associates.").
156. Letter from John Marshall to Harrison Gray Otis (Aug 5, 1800), in 4 The Papers of John Marshall at 204-05.
157. Friedman, History of American Law at 109 (cited in note 20).
158. See, for example, Rehnquist, The Supreme Court at 40 (cited in note 33) ("Marshall, in what one of his biographers calls 'an act of audacity,' changed this tradition in the Supreme Court of the United States so that an opinion for the Court was delivered by only one of the justices.").
159. Beveridge, Life of John Marshall at 16 (cited in note 139).
160. Id.
161. 5 US 1 (1801).
162. This is the famous "Old Ironsides." See http://www. ussconstitution.navy.mil.
163. To add to the mystique of the case, on appeal from a district court ruling for Talbot, Federalist Alexander Hamilton represented Talbot, while Republican, and Hamilton's archenemy and eventual murderer, Aaron Burr,
164. Smith, John Marshall at 293 (cited in note 133).
165. In an oft-quoted passage, the Court wrote: "The whole powers of war being, by the Constitution of the United States, vested in Congress, the Acts of that body can alone be resorted to as our guides in this enquiry." See Talbot v Seeman, 5 US at 28.
166. See William J, Brennan, Jr., In Defense of Dissents, 37 Hastings L J at 427 (cited in note 9) ("This change in custom at the time consolidated the authority of the Court and aided in the general recognition of the Third Branch as co-equal partner with the other branches. Not surprisingly, not everyone was pleased with the new practice.").
167. Opinions were issued under Marshall's name in all cases in 1801, 1805, and 1806; in 91 percent of cases in 1803; 89 percent in 1804; 90 percent in 1807; 83 percent in 1808; 88 percent in 1809; 73 percent in 1810; and 58 percent in 1812. Over the next 23 years, Marshall accounted for only about 40 percent of opinions. This remains about four times as many opinions as are written by Chief Justice Rehnquist.
168. See, for example, Stuart v Laird, 5 US 299 (1803).
169. See, for example, Martin v Hunter's Lessee, H US 304 (1816).
170. See, for example, Bank of the U.S. v Dandridge, 25 US 64 (1827).
171. Marbury v Madison, 5 US 137 (1803).
172. McCulloch v Maryland, 17 US 316 (1819).
173. Martin v Hunter's Lessee, 14 US 304 (1816) (Marshall recused himself because he was personally involved in this case; Joseph Story wrote the opinion);
174. Cohens v Virginia, 6 Wheaton 264 (1821).
175. Gibbons v Ogden, 22 US 1 (1824).
176. See Herbert v Wren, 11 US 370 (1813). Johnson's first dissent was tentative: the report states that he dissented but "did not state his reasons."
177. Id at 382.
178. Charles Warren, 1 The Supreme Court in United States History 193 (1926).
179. For example, many of Jefferson's letters cited above were correspondence between Jefferson and Justice Johnson in which Jefferson extolled the virtues of traditional seriatim opinions.
180. Johnson and Livingston (Jefferson appointees) authored 20 and 9, respectively; Thompson (Monroe appointee) authored 6; Baldwin and McLean (Jackson appointees) authored 6 and 2, respectively; Story and Duvall (Madison appointees) authored 4 and 1; Chase (Washington appointee) authored 3; Marshall and Washington (Adams appointees) authored 3 and 1.
181. Johnson heard approximately 977 cases during his time on the Court (1805-33); he dissented or wrote seriatim 39 times (or in 4 percent of cases). See David G. Morgan, The Origin of Supreme Court Dissent, 10 Wm & Mary Q 353, 377 (1953).
182. Friedman, History of American Law at 128 (cited in note 20).
183. Herbert A. Johnson, The Chief Justiceship of John Marshall, 1801-1835 51 (1997) (noting that there is "undeniable evidence that Chief Justice Marshall did not dominate his colleagues; the domination theory has been so thoroughly refuted that Professor David Currie referred to it as the story of 'John Marshall and the six dwarfs.'").
184. Although the call to impeach a Supreme Court Justice for a particular decision seems outrageous today, during this era such charges were frequently threatened and occasionally levied against judges. For example, in 1805 Associate Justice Samuel Chase was impeached by the House and tried in the Senate. The ground for the impeachment was Chase's handling of several criminal trials in which he tried to implement the Adams administration's attempts to silence political foes. However, the charges against Chase were shown to be politically motivated and he was acquitted in the Senate. Judge Charles Pickering was not so lucky. A Federalist judge who "had committed no 'high crimes and misdemeanors'" but was "a drunk, seriously deranged," and overtly political in his handling of cases, was impeached and convicted in 1804. See Friedman, History of American Law at 129-30 (cited in note 20). This impeachment, like that of Alexander Addison, a Federalist judge from Pennsylvania who "harangued grand juries on political subjects" and was impeached and removed from office in 1803, was Jefferson's attempt to create a "bogeyman" to threaten judges into good behavior.
185. Id at 129. Historians believe that it was largely effective, much like Roosevelt's "Court-packing plan" 150 years later.
186. Id at 129, 132 ("The failure of [the Chase] impeachment was not a clear-cut victory for either side. . . . The judges won independence, but at a price. Their openly political role was reduced.").
187. The number of Supreme Court Justices was originally set at six. See Judiciary Act of 1789, 1 Stat 73 (1789). Changes in the number of Justices have been made or proposed many times for political reasons. For example, when Jefferson was elected in 1800, the outgoing Federalist Congress reduced the number of Justices to five, but this was increased to six and then seven by Republicans in Congress to give Jefferson two appointments. Andrew Jackson got two appointments when the Court grew to nine in 1837. Antislavery forces increased the Court to ten, but then after the Civil War, the Republicans reduced the number to seven to ensure Democrat Andrew Johnson would not get any appointments. When a Republican, U.S. Grant, was elected in 1868, the Republicans gave him two new Justices to appoint, expanding the Court back to nine. His nominees quickly made an impact, voting to reverse the Court's recently created precedent in the Legal Tender cases. More recently, Franklin Delano Roosevelt's Court-packing plan did not succeed in increasing the number of Justices, but it did cause enough Justices to reverse opposition to the New Deal to achieve the results intended.
188. For example, Senator Charles Sumner of Massachusetts was concerned that the Supreme Court would hold Congress's reconstruction laws unconstitutional, so he introduced a bill in 1869 that would dramatically curtail the Supreme Court's jurisdiction: "The judicial power extends only to cases between party and party . . . and does not include the President or Congress, or any of their acts . . . and all such acts are valid and conclusive on the matters to which they apply; . . . and no allegation or pretence of the invalidity thereof shall be excuse or defense for any neglect, refusal, or failure to perform any duty in regard to them." See Congressional Globe, 41st Cong, 2d Sess, at 2895 (1869). Senator Lyman Trumbell of Illinois proposed a similar, albeit more narrow, limitation on the Court in 1868 and 1869, arguing that the reconstruction acts were "political in character" and the Court had no jurisdiction to pass upon them.
189. See 40th Cong, 2d Sess, at 1204, 1428, 1621 (1868);
190. see also 41st Cong, 2d Sess, at 3, 27, 45, 96, 152, 167 (1869).
191. Senator Richard M. Johnson of Kentucky proposed giving the Senate appellate jurisdiction in cases in which the government was a party, allowing the Senate to effectively overrule Supreme Court opinions. See Annals of Congress, 17th Cong, 1st Sess, Dec 12, 1821, Jan 14 and 15, 1822. In response to the Supreme Court's rejection of much progressive legislation in the pre-New Deal period, Senator Robert M. LaFollette, Sr. of Wisconsin proposed a constitutional amendment that would allow two-thirds of the Senate to overrule any decision of the Court.
192. See Cong Rec, 67th Cong, 2d Sess, at 9073 (1922), reprint of LaFollette's speech before the American Federation of Labor.
193. Johnson, Chief Justiceship at 121 (cited in note 165).
194. Smith, John Marshall at 291 (cited in note 133).
195. "In Marshall's hands the law is nothing more than an ambiguous text to be explained by his sophistry into any meaning which may subserve his personal malice." Letter from Jefferson to Madison (May 25, 1810), in M. Smith, ed, The Republic of Letters: The Correspondence Between Thomas Jefferson and James Madison 64 (1995).
196. See, for example, Akhil Reed Amar, Marbury, Section 13, and the Original Jurisdiction of the Supreme Court, 56 U Chi L Rev 443 (1989);
197. John V. Orth, Book Review: John Marshall and the Rule of Law, 49 SC L Rev 633, 636 (1998) ("Marshall did seem to have a strategic vision of forcing . . . the national government to govern the nation.").
198. Johnson, Chief Justiceship at 96-97 (cited in note 165).
199. Id at 110-11.
200. "Yet, neither [Justice] Johnson nor any later justices could or would undo Marshall's work. Doctrine changed; personalities and blocs clashed on the Supreme Court; power contended with power; but these struggles all took place within the fortress that Marshall had built." Friedman, History of American Law at 134 (cited in note 20).
201. Marshall, like his successors, was first and foremost a lawyer. He spent a career representing business interests in Virginia, and, like most contemporaries of the bench and bar, was a significant property owner. See Charles F. Hobson, The Great Chief Justice: John Marshall and the Rule of Law 74 (1996).
202. Sheldon Goldman, Constitutional Law and Supreme Court Decision-Making 178 (1982).
203. Id at 178-79.
204. James Watts, Edward Douglas White, in Leon Friedman and Fred Israel, eds, 3 The Justices of the United States Supreme Court 1789-1969 (1969).
205. Edward White, The American Judicial Tradition 180 (1976).
206. Walter Murphy, Elements of Judicial Strategy 61 (1964).
207. Henry Abraham, The Judicial Process 230 (1986).
208. Id at 224.
209. Of the nearly 400 cases decided by the Supreme Court between 1801 and 1833, less than 50 (or about 12 percent) were "constitutional" cases, according to Professor David Currie. See Currie, Constitution in the Supreme Court at 65-193 (cited in note 115) (collecting and treating these cases; number counted by author). The most common cases during this time were traditional common law cases: property (17 percent), admiralty/prize cases in which the Court was an instance court (15 percent), procedure (15 percent), family law (10 percent), and contracts (9 percent). Chief Justice Rehnquist also describes nineteenth-century Supreme Court jurisprudence as largely run of the mill by today's standards, noting that the Court spent considerable time during the 1860s and 1870s on railroad bond cases.
210. See Rehnquist, The Supreme Court at 90-91 (cited in note 33).
211. Erie Railroad Co. v Tompkins, 304 US 64 (1938). Prior to 1938, many constitutional questions of great import were decided, but the Supreme Court docket consisted mainly of routine common law and admiralty cases. Some of the more famous dissents of the early period arose in the tough constitutional questions.
212. See, for example, Lochner v New York, 198 US 45 (1905);
213. Scott v Sanford, 60 US 393 (1857);
214. and Plessy v Ferguson, 163 US 537 (1896).
215. 71 US 2 (1866).
216. 71 US 333 (1866).
217. 163 US 537 (1896).
218. See, for example, Abrams v United States, 250 US 616 (1919) (holding that an amendment to the Espionage Act of 1917 that made it a crime to criticize the government did not violate the First Amendment). Abrams is no longer good law.
219. See Brandenburg v Ohio, 395 US 444 (1969) (holding that the government cannot punish potentially inflammatory speech unless it threatens "imminent lawless action").
220. Thomas Walker, et al, On the Mysterious Demise of Consensual Norms in the United States Supreme Court, 50 J Pol 361, 362 (1988).
221. Id.
222. Id at 364-65.
223. Rehnquist, The Supreme Court at 174-75 (cited in note 33).
224. The "incorporation" of the Bill of Rights via the Fourteenth Amendment is a controversial constitutional question. In a recent essay, David Strauss notes that the issue "went from being a subject of intense controversy - probably the most controversial issue in constitutional law between the mid - 1940s and mid-1950s, and one of the most controversial for a decade or more thereafter-to being a completely settled issue."
225. See David A. Strauss, Common Law, Common Ground, and Jefferson's Principle, 112 Yale LJ 1717, 1746 (2003).
226. Although the first right to be incorporated, the Takings Clause, occurred in the late nineteenth century, see Chicago, Burlington &Quincy Railway Co. v Chicago, 166 US 226 (1897), the period around Stone's tenure saw the greatest activity of incorporation by the Court.
227. See Gitlow v New York, 268 US 652 (1925) (incorporating freedom of speech clause);
228. Near v Minnesota, 283 US 697 (1931) (incorporating freedom of the press clause);
229. Powell v Alabama, 287 US 45 (1932) (incorporating right to assistance of counsel in capital criminal cases);
230. DeJonge v Oregon, 299 US 353 (1937) (incorporating freedom of assembly clause);
231. Cantwell v Connecticut, 310 US 296 (1940) (incorporating free exercise of religion clause);
232. Everson v Board of Education, 330 US 1 (1947) (incorporating establishment of religion clause);
233. In re Oliver, 333 US 257 (1948) (incorporating public trial right);
234. Wolf v Colorado, 338 US 25 (1949) (incorporating unreasonable search and seizure clause). The incorporation parade paused for a decade or so before resuming in the civil rights era of the sixties and seventies.
235. See Gideon v Wainwright, 372 US 335 (1963) (incorporating right to assistance of counsel in all felony cases);
236. Pointer v Texas, 380 US 400 (1965) (incorporating right to confrontation of adverse witnesses);
237. Klopfer v North Carolina, 386 US 213 (1967) (incorporating right to speedy trial);
238. Washington v Texas, 388 US H (1967) (incorporating right to compulsory process to obtain witness testimony);
239. Duncan v Louisiana, 391 US 145 (1968) (incorporating trial by impartial jury);
240. Rabe v Washington, 405 US 313 (1972) (incorporating notice of accusation). Some rights have not been incorporated (yet).
241. See Curtis v Loether, 415 US 189 (1974) (addressing right to jury trial in civil cases);
242. Presser v Illinois, 116 US 252 (1886) (rejecting incorporation of Second Amendment).
243. See Gilbert v Minnesota, 254 US 325 (1920).
244. The most startling example of this power comes from the cases Minersville School District v Gobitis, 310 US 586 (1940),
245. and West Virginia Board of Education v Barnette, 319 US 624 (1943). In Gobitis, Chief Justice Stone dissented from an eight-member majority holding that Jehovah's Witnesses could be expelled from public school for failing to salute the flag during the Pledge of Allegiance.
246. Gobitis, 310 US at 601-02.
247. In the very next term, five Justices were persuaded by Stone's dissent, and voted to overrule Gobitis in a case again involving Jehovah's Witnesses and the Pledge. Barnette, 319 US at 642.
248. David Danelski, The Influence of the Chief Justice in the Decisional Process of the Supreme Court, in Joel Grossman and Richard Wells, eds, Constitutional Law and Judicial Policy Making (1980).
249. Alpheus Mason, Harlan Fiske Stone: Pillar of the Law 608 (1956).
250. Richard Kirkendall, Fred M. Vinson, in Leon Friedman and Fred Israel, eds, 4 The Justices of the United States Supreme Court 1789-1969 2641 (1969).
251. See, for example, Rehnquist, The Supreme Court at 148 (cited in note 33) ("Brought in as a mediator, Vinson largely failed in this task.").
252. Robert Steamer, Chief Justice: Leadership and the Supreme Court 19 (1986).
253. Graves v New York ex rel O'Keefe, 306 US 466, 487 (1939) (Frankfurter, J, concurring).
254. Id.
255. See Letter from James Madison to Spencer Roane (Sept 2, 1819), reprinted in Philip B. Kurland and Ralph Lerner, eds, The Founders' Constitution, Article 1, Section 8, Clause 18, Document 15 (1987).
256. Not only has the number of dissents increased, but so has the vitriol. When Justices did dissent during the Marshall Court, they did so reluctantly and apologetically. This was in part due to the collegial atmosphere that existed in the "boardinghouse Court." Compare several opening sentences from dissenting opinions during this period. Those Federalist Justices that supported Marshall's change in discourse wrote cautiously when dissenting. See Bank of the United States v Dandridge, 25 US 64, 90 (1827) (Marshall, J, dissenting) ("I should now, as is my custom, when I have the misfortune to differ from this Court, acquiesce silently in its opinion . . . .");
257. Mason v Haile, 25 US 370, 379 (1827) (Washington, J, dissenting) ("It has never been my habit to deliver dissenting opinions in cases where it has been my misfortune to differ from those which have been pronounced by a majority of this Court.");
258. Drown v United States, 12 US 110, 129 (1814) (Story, J, dissenting) ("In this case, I have the misfortune to differ in opinion from my brethren."). By contrast, the two most frequent dissenters during Marshall's reign, Justice Johnson and Justice Livingston, both Jefferson appointees and strongly opposed to Marshall's change to unanimous opinions, did not hesitate to criticize the majority when dissenting.
259. See Kirk v Smith, 22 US 241, 294 (1824) (Johnson, J, dissenting) ("The reasoning upon this cause, must be utterly unintelligible to those who hear it.. . .");
260. United States v Smith, 18 US 153, 163 (1820) (Livingston, J, dissenting) ("In a case affecting life, no apology can be necessary for expressing my dissent from the opinion which has just been delivered."). Even these attacks on the majority pale by comparison to the lack of respect shown fellow Justices by modern dissenters.
261. See Lee v Weisman, 505 US 577 (1992) (Scalia, J, dissenting) (writing that the majority opinion was "oblivious to our history," "incoherent," a "jurisprudential disaster," and "nothing short of ludicrous."). This type of name calling and hyperbolic rhetoric is a far cry from the day when Justices rarely had the courage to dissent, and when they did, the guilty feelings compelled them to apologize publicly. As Roscoe Pound noted long ago, such vitriolic denunciation of other Justices is "not good for public respect for courts and law and the administration of justice."
262. Roscoe Pound, Cacoethes Dissentiendi: The Heated Judicial Dissent 39 ABA J 794, 795 (1953). Although Judge Posner has argued that Justices should dissent because dissents play (have played) an integral part in the development of law, Posner agrees with Pound that the acerbic dissent is both unnecessary and destructive.
263. See Richard A. Posner, The Federal Courts: Challenge and Reform 356-57 (1996).
264. Posner criticizes Justices as being more concerned about their individual role and less concerned with the institutional role of the Court. In cases that are relatively straightforward, Posner agrees with justice Taft that a definitive rule that may not be perfect or even "correct" is often better than an uncertain rule. "In such a case a dissent will communicate a sense of the law's instability that is misleading." Id. Accusing judges of worrying about their own legacy and ego, Posner writes that "[f]rom an institutional perspective it is better for the disagreeing judge not to dissent publicly [in a case which he knows will not be reconsidered soon], even though such forbearance will make it more difficult for someone to write the judge's intellectual biography."
265. Id at 357.
266. From 1801 to 1940 (Marshall to Hughes) there were approximately 1,231 cases with dissents out of a total of approximately 17,811 (∼7 percent); from 1941 to 1997 (Stone to Rehnquist) there were about 3,877 cases with dissents out of a total of approximately 7,434 (∼52 percent). From 1801 to 1940 (Marshall to Hughes) there were approximately 1,231 cases with dissents out of a total of approximately 17,811 (∼7 percent); from 1941 to 1997 (Stone to Rehnquist) there were about 3,877 cases with dissents out of a total of approximately 7,434 (∼52 percent).
267. William H. Rehnquist, The Supreme Court: How It Was, How It Is 302-03 (1987).
268. Brennan, In Defense of Dissents, 37 Hastings L J at 437-38 (cited in note 9).
269. In 1995 majority opinions represented 43 percent of all opinions. See Posner, Federal Courts at 358 (cited in note 108). See also Figure 3.
270. Turner Broadcasting System v FCC, 520 US 180 (1997).
271. Brennan, In Defense of Dissents, 37 Hastings L J at 437-38 (cited in note 9). Justice Brennan and Justice Marshall were two of the Court's most frequent and famous dissenters. Not only did these two Justices significantly add to the number of dissenting opinions, but they also introduced a new practice in the Supreme Court - the publishing of dissents from petitions filed with the Court. During the past 30 years there were hundreds of dissents from petitions published by Justice Brennan and Justice Marshall. These dissents were occasionally in protest of a denial of certiorari, but the vast majority was dissents from denials to review sentences of capital punishment. In each case for death penalty review received by the Court, Justice Brennan and Justice Marshall published a dissent that simply stated that in their view capital punishment violated the cruel and unusual provision of the Eighth Amendment. This practice was in plain violation of well-established Court precedent. The Justices were making an overtly political statement - a statement to the public and to the future.
272. Although the law would be less great without the dissents of Brandeis and Holmes, these influential and often graceful expositions of the law as how it should be are by far the exception from the mass of pointless dissents. An example of the inefficient use of separate opinions is the opinions of Justice Frankfurter. John P. Frank studied the separate opinions of Justice Frankfurter, the most frequent concurring Justice in the history of the Court. Frank found that Frankfurter's opinions were almost never cited by anyone. See John P. Frank, Marble Palace: The Supreme Court in American Life 126 (1958).
273. Frank concluded that this was a waste of energy and talent and led to unnecessary ambiguity and uncertainty in the law. Even Justice Holmes, who was known as the "Great Dissenter," remarked that dissents are in most cases "useless and undesirable." Northern Securities Co. v United States, 193 US 197, 400 (1904). Therefore, Holmes was reluctant to dissent and discouraged the practice in all but the most necessary circumstances. Like the boy who cried wolf, the more one dissents, the less likely dissents are to be seriously considered. Familiarity of dissent breeds contempt.
274. Brennan, In Defense of Dissents, 37 Hastings L J at 430 (cited in note 9).
275. A classic example of this in our era is the dissenting opinion of then-Associate Justice Rehnquist in Garcia v San Antonio Metropolitan Transit Authority, in which he wrote that the states' rights principles he and the other dissenters were advocating were "a principle that will, I am confident, in time again command the support of a majority of this court." 469 US 528, 580 (1985). After the Court's stunning series of 5-4 decisions over the past decade upholding the rights of states against federal interests, Rehnquist has proved to be quite a prognosticator.
276. Another possible explanation for continued dissents is the rise of the law clerk and the expansion of opinions to resemble law review articles. As the length and legal extent of an opinion increases with more and more arguments and footnotes, so does the grounds for possible disagreement among the Justices. Finally there is the possibility that modern Justices are generally more apt to desire individual recognition. Supreme Court Justices now have their own jurisprudence that is studied in law schools and debated in the legal literature. Furthermore, legal biographies, monographs, and speeches are increasingly popular so as to tempt individual Justices to create their own legacy of judicial opinions. Justice Scalia and Judge Posner both agree that personal recognition is often the motivating force behind the trend of frequent dissenting opinions. See Antonin Scalia, The Dissenting Opinion, J S Ct Hist 33-44 (1994);
277. Posner, Federal Courts at 356-57 (cited in note 205). The power of ego should not be underestimated.
278. See, for example, Rehnquist, The Supreme Court at 141 (cited in note 33) (commenting on Justice Frankfurter's proclivity to write separately, and noting the rise in the judicial ego), especially when Justices are so underpaid relative to what they could earn in the private legal world. Without riches, it is understandable that Justices seek individual power and fame.
279. Clinton v Jones, 520 US 681 (1997). In fact this was an 8-0-1 majority in which Justice Breyer concurred with the majority. However, Justice Breyer's opinion reads more like a dissent. Breyer probably joined the majority primarily to achieve unanimity, while writing separately in order to undercut the majority opinion or to offer future Supreme Court Justices an antiprecedent, or to offer lower court judges an escape hatch around the decision. Other examples of this need abound.
280. See, for example, United States v Nixon, 418 US 683 (1974) (requiring President Nixon to turn over the Watergate tapes);
281. Cooper v Aaron, 358 US 1 (1958) (requiring states to abide by federal desegregation law).
282. See, for example, Bush v Gore, 531 US 98 (2000) (reserving, 5-4, the recount of the ballots in the 2000 presidential election by the Florida Supreme Court).
283. See Scalia Dessenting Opinion, J S Ct Hist at 33-44 (cited in note 214).
284. 347 US 483 (1954).
285. Hughes, Supreme Court at 67-68 (cited in note 12).
286. Kevin M. Stack, The Practice of Dissent in the Supreme Court, 105 Yale L J 2235, 2236 (1996).
287. Id at 2246.
288. Jefferson wrote about how difficult impeachment would be, and how this interplays with judicial discourse. See Letter of Thomas Jefferson to Edward Livingston, in Lipscomb and Bergh, eds, 16 The Writings of Thomas Jefferson: Memorial Edition 114 (1903-04) ("I . . . [am] against caucusing judicial decisions, and for requiring judges to give their opinions seriatim, every man for himself, with his reasons and authorities at large, to be entered of record in his own words. A regard for reputation, and the judgment of the world, may sometimes be felt where conscience is dormant, or indolence inexcitable. Experience has proved that impeachment in our forms is completely inefficient.");
289. see also Letter from Thomas Jefferson to Spencer Roane, in Paul Leicester Ford, ed, The Works of Thomas Jefferson (1904-05) ("For experience has already shown that the impeachment it has provided is not even a scarecrow. . . .").
290. F'or example, Bork proposed congressional review of Supreme Court decisions or curtailing the scope of judicial review. Sec Robert H. Bork, Our Judicial Oligarchy, 67 First Things 21,21 (1996). Bork argued that "[t]he most important moral, political and cultural decisions affecting our lives are steadily being removed from democratic control," and that a "change in our institutional arrangements" is the only thing that "can halt the transformation of our society and culture by judges."
291. Id. His solution: "Decisions of courts might be made subject to modification or reversal by majority vote of the Senate and the House of Representatives. Alternatively, courts might be deprived of the power of constitutional review."
292. Id. This point of view is a departure for Bork, who argued previously that a veto over the Supreme Court was dangerous because it could be used destructively to overturn the "Court's essential work."
293. See Robert H. Bork, The Tempting of America: The Political Seduction of the Law 55 (1997) ("If two-thirds of the Senate might have overruled Dred Scott, then perhaps it is imaginable that two-thirds might have overruled a case like Brown v Board of Education. That depends on the passions of the moment, but is obvious that unpopular rulings may be easily overturned as improper ones. There is, after all, no reason to think that over time the Senate will be a more responsible interpreter of the Constitution than the Court.").
294. See note 168.
295. See note 125.
296. See Friedman, History of American Law at 142 (cited in note 20).
297. Geoffrey Stone, Chief Justice Roberts and the Role of the Supreme Court, University of Chicago Faculty Blog (Feb 2, 2007), available at: http://uchicagolaw.typepad.com/faculty/2007/02/chief_justice_r.html.
298. Id. ("It is also important to note that some of the most influential opinions in the history of the Supreme Court were concurring and dissenting opinions. Although they did not command the support of a majority of the Justices at the time, they eventually won the day because of the force of their reasoning. Familiar examples, to name just a few, include Justice Harlan's famous dissenting opinion in Plessy v Ferguson, the pivotal dissenting and concurring opinions of Justices Holmes and Brandeis in a series of free speech decisions following World War I, and Justice Robert Jackson's landmark concurring opinion in the Steel Seizure case.").
299. Id.
300. Roberts's move is perhaps analogous to that of Lord Kenyon.