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."

What could make waves

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.

Justice David Souter denounced the majority for having achieved "doctrinal bankruptcy." He and Justice Stephen Breyer, who wrote a separate dissent, warn that government funding of religious education may trigger religious strife within the US.

Justice Souter's 34-page dissent ends with an appeal to state and national lawmakers to avoid the majority's invitation to enact voucher programs. "The Establishment Clause is largely silenced," he writes. "I do not have the option to leave it silent, and I hope that a future court will reconsider today's dramatic departure from basic Establishment Clause principle."

Mark Tushnet, a law professor at Georgetown University Law Center in Washington, says such dissents will continue to resonate with voucher opponents. "There are a lot of people in the country who oppose vouchers both on policy and constitutional grounds, and a dissent can articulate for those people the constitutional rationale for the opposition," he says.

For conservatives, the term's most talked-about dissent was delivered by Justice Antonin Scalia in response to the court's other landmark ruling – that the execution of the mentally retarded amounts to cruel and unusual punishment under the Eighth Amendment.

Justice Scalia, in his often-sarcastic 18-page dissent, lambastes the majority as judicial activists relying more on "feelings" and "intuition," than the text and original meaning of the Eighth Amendment.

"The arrogance of this assumption of power takes one's breath away," he writes. "Today's decision is the pinnacle of our Eighth Amendment death-is-different jurisprudence. Not only does it find no support in the text or history of the Eighth Amendment; it does not even have support in current social attitudes," Scalia says. "Seldom has an opinion of this court rested so obviously upon nothing but the personal views of its members."

A federalist bone to pick

Justice Breyer adopted a similar line of argument and directed it at Justice Scalia and the other members of the court's conservative wing in a dissent criticizing a major federalism decision announced in late May.

The 5-to-4 opinion announced another pro-states rights ruling, cutting back the power of federal agencies. "Where does the Constitution contain the principle of law that the court enunciates?" Breyer asks in his 17-page dissent. "I cannot find the answer to this question in any text, in any tradition, or in any relevant purpose."

Perhaps the most famous and prescient dissent ever written by a Supreme Court justice came in the 1896 case Plessy v. Ferguson, where the court upheld a law mandating separate but equal treatment of blacks and whites.

"The judgment this day rendered will, in time, prove to be quite as pernicious as the decision by this tribunal in the Dred Scott case," wrote Justice John Marshall Harlan in a lone dissent referring to the court's infamous decision 40 years earlier that blacks were not US citizens.

Justice Harlan added: "In the eye of the law, there is in this country no superior, dominant, ruling class of citizens.... Our Constitution is color-blind."

Eventually, a Supreme Court majority did embrace this idea and struck down separate-but-equal laws in the landmark decision Brown v. Board of Education. It happened in 1954 – nearly 60 years later.

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