Dissenting opinions as a window on future rulings

In June 1990, US Supreme Court Justice John Paul Stevens sat down and wrote a dissenting opinion in a death-penalty case. At issue was whether the defendant had a right to have his sentence determined by a jury rather than by a judge.

The majority held that capital defendants had no such right. Yet Justice Stevens wrote: "I am convinced that the Sixth Amendment requires the opposite conclusion."

Last week, in a case from Arizona, six other members of the high court embraced the exact position taken by Stevens 12 years ago.

As the justices ended their term last week after significant decisions on school vouchers, random drug testing, the execution of the mentally retarded, and other hotly disputed issues, legal scholars aren't just poring over the majority opinions. Many are examining the written dissents – such as Stevens's – to piece together a more comprehensive view of the battles waged behind closed doors.

In the most extraordinary cases, a combination of skill, resolve, patience, and perhaps something akin to prophecy produces a dissenting opinion that later becomes the law of the land.

"A dissent can be an important prophecy instead of just a disagreement," says Burt Neuborne, legal director of the Brennan Center for Justice at New York University Law School.

But he quickly adds with a laugh, "Of course, a dissent can be at times just railing in the wilderness."

Often, it is the dissents that make the most interesting reading. Sometimes they provide a vehicle for a nasty or humorous comment about the winning side of a hard-fought constitutional showdown. More often, they include razor-sharp commentary, mercilessly probing the soft underbelly of the majority opinion.

The most effective dissents lay out a blueprint for the eventual overturning of the high court's newest precedent. In such instances, dissenting opinions become more an expression of hope than defeat.

For those who argue cases to the justices, dissents can suggest future issues to exploit or avoid.

"In the past 15 to 20 years, the vast majority of controversial opinions have been 5 to 4, so you read dissents because a minor change of personnel [on the court] could turn that into a majority opinion," says Michael Carvin, a Washington lawyer.

He adds, "Particularly in the death-penalty and religion areas, the court has gone back and forth a lot over the past 20 years, so dissents are an important guide."

Some of the most significant dissents filed this year came in 5-to-4 decisions involving school vouchers, random drug testing in schools, campaign speech in judicial elections, and federalism. Important dissents were also filed in 6-to-3 rulings involving the execution of the mentally retarded, warrantless searches of passengers on a bus, and environmental regulations seen as tantamount to a taking of private property.

"In constitutional cases, I think dissents are very important," Mr. Neuborne says. "Although respect for precedent applies across the law, everyone agrees that the court can change its mind in a constitutional case, and an important dissent in a constitutional case can become the law."

One of the most widely read dissents of the term was written in the term's most important decision – the landmark ruling that school vouchers do not violate the separation of church and state required in the First Amendment's establishment clause.

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