Dissenting opinions as a window on future rulings

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."

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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