Get The Lithub Daily
- The Best Reviewed Books of the WeekMay 18, 2018
Follow us on TwitterMy Tweets
Throughout the 225 years that the Supreme Court has sat, all of its justices have proclaimed that they try to reach decisions based on constitutional precepts, not partisan considerations. Yet because the constitutional dialogue on the Court reflects the larger public policy debates in the nation, it is perhaps inevitable that those people and groups unhappy with the Court’s decisions will charge that politics, not law, has determined the results. Thomas Jefferson and his followers continually attacked the Court for its Federalist opinions, even after a majority of the bench consisted of men appointed by Jefferson, Madison, and Monroe. The Dred Scott decision brought widespread denunciation in the North that the justices had sided with the Democratic slaveholders of the South. During the 1930s, supporters of the New Deal charged the conservative majority that thwarted Franklin Roosevelt’s program as carrying the political standard of the Old Guard, which, of course, meant the Republican Party. Richard Nixon and southern Democrats claimed that the Warren Court represented the political beliefs of the liberal left wing of the Democratic Party, even though two of its most liberal members—Earl Warren and William Brennan—had been appointed by a Republican president.
The Supreme Court, as one of the three branches of government, is of course political; it takes part not only in policy making but in interacting with the other parts of the federal government, the states, and the people. But ever since the 2000 election, the volume of charges that the Court is also partisan has increased exponentially. Part of this is due not only to the decision in Bush v. Gore but to the fact that so many of its most important decisions have been decided by a 5–4 vote, with alleged Republicans (conservatives) lined up against Democrats (liberals). The appointments made by Ronald Reagan, George H. W. Bush, and George W. Bush, with the exception of David Souter, have been consistently conservative, with some, like Antonin Scalia, Clarence Thomas, and Samuel Alito, more so than others, like Sandra Day O’Connor and Anthony Kennedy. Those named by Bill Clinton and Barack Obama have certainly been more moderate, if not liberal in the Douglas/Brennan/Goldberg category.
We expect presidents to name men and women to the federal bench who agree with their political philosophy. George Washington expected his appointees to share a particular view of the Constitution, a view that later became known as Federalist. Franklin Roosevelt wanted men who believed the Commerce Clause gave the federal government power to deal with the economic problems caused by the Depression. Ronald Reagan and his attorney general Edwin Meese set up a questionnaire system to ensure that judicial appointees held the correct Republican views on issues such as abortion and affirmative action. It should therefore come as no surprise that people like Scalia and John Roberts, or Stephen Breyer and Elena Kagan, share many of the beliefs of the presidents who nominated them.
Justice Stephen Breyer is one of the members of the Court who has done a great deal of speaking at universities and law schools, and he says there are two preconceived notions that he faces at each meeting: one is that the justices only take cases they find interesting, and the other is that the justices are less objective interpreters of the law than “junior-league politicians.” He says he finds it much easier to refute the first than the second, even though he can cite case after case where the lineup had supposed conservatives voting with alleged liberals and 5–4 decisions are really a minority of the Court’s opinions.
The moderator at one of these sessions, Professor Jeffrey Rosen of the George Washington Law School, agreed with Breyer in general but noted that at the end of every term there will be 5–4 decisions that precisely confirm the Court’s ideological divide. Rosen told Breyer that he instructs his students that if they believe it is all about politics, they will “miss everything that’s beautiful about constitutional law.” But guess what, Rosen said, “They don’t believe me. They think it’s all politics.” That is a view that, rightly or wrongly, is shared by many people.
Breyer, however, is right, in that on any number of issues that come before the Court, there is no “Democratic” or “Republican” position. In the October 2013 term, for example, Scalia, joined by Ginsburg, Sotomayor, and Kagan, wrote a powerful dissent against an opinion by Thomas, regarding the validity of an anonymous 911 tip as a cause to stop and search a car. In a second case, Elena Kagan, considered the most liberal member of the current Court, joined with the conservatives in turning down a death row inmate’s claim that his case deserved addi- tional review. The Court actually split three ways in trying to decipher a fuzzy law passed by Congress ordering restitution to victims of child pornography.
It would be difficult to determine when—or if—partisan consideration plays a role in decision making, and one should also keep in mind that agendas change. Franklin Roosevelt named justices who he believed—and rightly so—would uphold his view of broadly inter- preted Commerce Clause powers, yet within a few years questions of economic and property rights practically disappeared from the Court to be replaced by cases involving civil rights and liberties, on which the Roosevelt appointees differed widely. The Reagan and Bush appointees have been fairly consistent in their decisions regarding business claims and opposition to affirmative action, but there is no “Republican” posi- tion on questions of right to die, patent law, and the Internet.
A number of scholars have suggested that we are in the midst of another significant change in the Court’s agenda, where the hot-button issues of race and abortion will be replaced by questions growing out of the technological revolution. The Court has already begun to hear some of these cases, and the divisions on the bench clearly reflect intellectual and jurisprudential considerations.
As noted earlier, “the fate of a dissent lies in the hands of history.” While contemporaries who agree with a dissent may proclaim it prophetic and bound for glory, for the most part we cannot tell at the time whether or not a dissent will succeed in its call to future generations. There is no evidence that Stephen Field’s dissent in Slaughterhouse, the first Harlan’s in the Civil Rights Cases or Plessy, Holmes in Abrams, Brandeis in Olmstead, and Black in Betts v. Brady made any great impression on those who read them at the time. All have now entered the canon of great dissents, written by “prophets with honor.”
Those of us who work in the field of constitutional and legal history are as aware as our colleagues in social, economic, or political history of the difficulties in trying to assess what is happening today as part of a long-term trend. A half century ago, one of my teachers told me that French schools avoided this problem by declaring that anything after the French Revolution in 1789 was not history but current events. One assumes that date has moved forward somewhat, but there is a certain wisdom in making sure that sufficient time has elapsed so that one can make a balanced judgment.
When I lecture, I am invariably asked how I think the Court will act in some future case or controversy. Just as consistently, I say, “I am a historian, not a prophet, and while I trust my judgment on things past, I have no idea how the Supremes will decide.” Certainly one could not have predicted in 2008, for example, that in five years the Court would take not one but two cases on same-sex marriage and rule that homosexuals could not be denied the equal protection of the laws.
Yet despite the caution that I and other historians share, we do venture to make assessments, even on some things that are less than 50 years old. I decided to ask my colleagues in the field of constitutional history what dissents they thought would have staying power, opinions that might one day be part of the canon and, if not justified, at least enshrined in constitutional law casebooks. The answers varied enormously and reflected the respondents’ professional as well as personal interests, which is to be expected.
Three dissents stood out: those of William Brennan in Mc Cleskey v. Kemp (1987), Antonin Scalia in Morrison v. Olson (1988), and Ruth Bader Ginsburg in NFIB v. Sebelius (2012).
William J. Brennan. In 1978, a jury in Atlanta, Georgia, convicted Warren McCleskey, an African American, of killing a white policeman during a robbery. The jury recommended the death penalty. After unsuccessful appeals in state courts, McCleskey sought habeas relief in federal court, arguing that in Georgia the death penalty was applied in a manner that discriminated against blacks. He sup- ported this position with research done by David C. Baldus showing that 11 percent of defendants charged with killing whites, but only 1 percent of defendants charged with killing blacks, received the death penalty. The Baldus study showed many other discrepancies between how whites and blacks accused of murder were sentenced, with harsher penalties always meted out to African Americans. The district court and the court of appeals rejected this argument, and so did the Supreme Court. Writing for the Court, Justice Lewis Powell held that even if these statistics were accurate, they did not prove that McCleskey’s death penalty had been the result of racial bias. Death penalty decisions were made on an individual, case-by-case basis, and each judgment rested on a variety of interconnected facts. The decision makers—the jurors—were different in each case. “At most,” Powell concluded, “the Baldus study indicates a discrepancy that appears to correlate with race. Apparent disparities in sentencing are an inevitable part of our criminal justice system.”
Brennan began his dissent with the familiar statement that he adhered to the view that “the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments.” The statistics McCleskey had presented clearly impressed Brennan, who quoted them extensively throughout his dissent and said they “demonstrated precisely the type of risk of irrationality in sentencing that we have constantly condemned in our Eighth Amendment jurisprudence.” Had Warren McCleskey at some point in the proceedings asked his lawyer whether a jury would be likely to convict him, a “candid reply . . . would have been disturbing.” Yet the majority found no fault in a system in which race clearly affected sentencing.
Under the majority opinion, no matter how prevalent a role racial considerations played in the criminal justice system, no one defendant would ever be able to prove that general prejudice had affected his particular case. Brennan, however, argued that this did not matter, because a whole string of death sentence cases going back to Furman v. Georgia (1972) had emphasized not the specific case but the risk of arbitrariness in the system. The Baldus study did just that; it showed not that McCleskey had been the victim of racial prejudice but that the system itself was flawed. Defendants challenging death sentences have never had to prove that “impermissible considerations actually infected sentencing decisions,” only that the system under which they had been sentenced “posed a significant risk of such an occurrence.” Here the Baldus study, despite the majority opinion, clearly showed not only that the risk existed but that in fact it played a role in hundreds of decisions. Brennan tore apart the majority opinion for its blindness to the fact that African Americans faced real prejudice in the Georgia criminal justice system, especially in capital cases. He concluded,
It is tempting to pretend that minorities on death row share a fate in no way connected to our own, that our treatment of them sounds no echoes beyond the chambers in which they die. Such an illusion is ultimately corrosive, for the reverberations of injustice are not so easily confined. “The destinies of the two races in this country are indissolubly linked together,” and the way in which we choose those who will die reveals the depth of moral commitment among the living.
The Court’s decision today will not change what attorneys in Georgia tell other Warren McCleskeys about their chances of execution. Nothing will soften the harsh message they must convey, nor alter the prospect that race undoubtedly will continue to be a topic of discussion. McCleskey’s evidence will not have obtained judicial acceptance, but that will not affect what is said on death row. However many criticisms of today’s decision may be rendered, these painful conversations will serve as the most eloquent dissents of all.
Since Mc Cleskey, the Court has refused to accept statistical evidence of discrimination against groups, and insisted—in death penalty as well as in many affirmative action cases—that proof of individual impact must be shown. If, and when, changes on the Court lead to accepting the type of proof found in the Baldus study, then Justice Brennan’s dissent will guide them in how they use these materials.
Antonin Scalia. A little over a year later, the Court handed down its decision in Morrison v. Olson, dealing with the constitutionality of special prosecutors. In the aftermath of the Watergate scandals, Congress enacted the Ethics in Government Act of 1978. A provision in the law allowed for a court, called the Special Division, to appoint independent counsel to investigate and prosecute high-ranking government officials for violations of federal criminal laws. In 1985, the House Judiciary Committee accused Theodore Olson, assistant attorney general for the Office of Legal Counsel, of providing false and misleading testimony. The committee chair requested that an independent counsel be appointed to investigate the allegations. The Special Division appointed James McKay independent counsel, and he was later replaced by Alexia Morrison, who instructed a grand jury to serve subpoenas on Olson and two others.
All three moved to quash the subpoenas, claiming that the independent counsel provisions of the act were unconstitutional. In July 1987, the district court upheld the constitutionality of the law, but the court of appeals reversed. The majority ruled that the independent counsel provision violated several parts of the Constitution, including separation of powers, Article III delegation authority, the Appointments Clause, and the Take Care Clause (Article II, section 3). Morrison appealed to the Supreme Court, which heard the case on 26 April 1988.
At conference, Chief Justice Rehnquist said he believed the special prosecutor provision to be constitutional. The 1978 law gave only limited responsibility to judges to choose prosecutors upon a request by the attorney general. It did not usurp executive powers, because the independent counsel remained subordinate to the attorney general and could indeed be fired by him, albeit only with good cause. All the other justices (Kennedy did not participate) agreed with Rehnquist, except Antonin Scalia, for whom the provision violated everything he believed about the constitutional separation of powers. Scalia, the last justice to speak around the table, claimed that the law, in his opinion, sanctioned prosecutorial powers outside the executive branch. Under the Constitution, the president’s duties included complete control over investigations and prosecutions of violations of federal law. Scalia changed no votes at the conference and during the drafting process actually turned off some of his colleagues. Harry Blackmun objected to Scalia’s hard line and strident tone.
In Rehnquist’s opinion for the 7–1 majority, he conceded that “there is no dispute that the functions performed by the independent counsel are executive” in nature, but that did not unduly trammel on the president’s authority. The chief justice acknowledged that “it is undeniable that the Act reduces the amount of control that the Attorney General and, through him, the President exercises over investigation and prosecution,” but this limitation did not “sufficiently deprive the President of control over the independent counsel to interfere impermissibly with his constitutional obligation to ensure the faithful execution of the laws.” Nor did it disrupt “the proper balance between the coordinate branches by preventing the Executive Branch from accomplishing its constitutionally assigned functions.” Separation of powers, Rehnquist argued, does not require “that the three Branches of Government operate with absolute independence.”
Although he had only been on the Court less than two years, Scalia’s dissent in the case, according to Ralph A. Rossum, “remains his most fully developed and powerful statement on his textualist understanding of the principle of separation of powers.” It did not matter that the law could be sustained on the majority’s understanding of separation of powers. Did the act violate “the text of the Constitution and the division of power that it established”? That division, which Scalia described as “the equilibrium the Constitution sought to establish,” mandated that all purely executive power had to remain under the president’s control, not what “the majority thinks, taking all things into account, . . . ought” to be under the president’s control.
Scalia has normally called for deference to the political branches, but not in separation of powers. As he explained,
Where a private citizen challenges action of the Government on grounds unrelated to separation of powers, harmonious functioning of the system demands that we ordinarily give some deference, or a presumption of validity, to the actions of the political branches in what is agreed, between themselves at least, to be within their respective spheres. But where the issue pertains to separation of powers, and the political branches are (as here) in disagreement, neither can be presumed correct. The reason is stated concisely by Madison: “The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right to settling the boundaries between their respective powers. . . .” Federalist No. 49. The playing field for the present case, in other words, is a level one. As one of the interested and coordinate parties to the underlying constitutional dispute, Congress, no more than the President, is entitled to the benefit of the doubt.
Without any compulsion to presume the constitutionality of the independent counsel law, Scalia charged that Congress had “effectively compelled a criminal investigation of a high-level appointee of the President in connection with his actions arising out of a bitter power dispute between the President and the Legislative Branch.” Moreover, Congress had deprived the president and his subordinates of their power to control the nature and extent of investigations. The constitutional text made very clear that the “‘executive Power shall be vested in the President of the United States’ (Art. II) and this does not mean some of the executive power, but all of it.”
Scalia went on to outline ways in which abuse of executive power could be controlled by Congress and the courts, and ultimately the people would decide when executives and their lieutenants abused their power. The independent counsel, on the other hand, was not accountable to the public in any way, shape, or form. He conceded that in the actual workings of government situations arose where bright lines of separation might be blurred, but in this instance there had been a deliberate effort to avoid the constraints envisioned by the Constitution. Moreover—and here Scalia showed that he, too, understood the workings of government—the act took away the power of the president to protect his high-level assistants from partisan sniping by Congress.
Scalia in many ways anticipated the major criticisms that would be hurled at Kenneth W. Starr’s investigation of the Clinton White House in the 1990s, when a partisan Republican majority in the House of Representatives seemed hell-bent on bringing the president down. What Scalia did not anticipate is that both President Clinton and Attorney General Janet Reno had resources to withstand the partisan importuning of the House Republicans. Nor did Scalia address the question of whether the wrongdoing in the Nixon administration related to the Watergate scandal might have remained hidden had there been no independent counsel.
The dissent shows both a strength and a weakness of Scalia’s jurisprudence. His textualism is impressive, and whether one agrees or disagrees with his jurisprudence, in this case and elsewhere his views require one to go back and read the text and question whether Congress and the president have overstepped the authority granted them by the Constitution vis-à-vis their relations to each other. The weakness is his unbending adherence to a literal reading of the text and his insistence that a document drafted in 1787 will provide all the answers necessary to resolve issues that are the products of conditions two centuries after the Philadelphia convention.
Ruth Bader Ginsburg. The third opinion that won the admiration of legal scholars was that of Justice Ginsburg in National Federation of Independent Business v. Sebelius, the case involving President Obama’s signature achievement in his first term, the Patient Protection and Affordable Care Act (ACA). At issue were two key provisions: first, the individual mandate that all Americans secure health insurance by 2014, and, second, a required expansion by the states of the Medicaid program. A splintered Court held that the individual mandate provision of the ACA exceeded Congress’s power under the Commerce Clause, but because it involved a penalty collected by the Internal Revenue Service, the fine could be construed as a “tax,” and the mandate thus passed constitutional muster under the congressional taxing authority. A different majority struck down the provision that allowed the federal government to withhold Medicaid funds unless a state agreed to implement certain expansions of the program under terms of the ACA.
Justice Ginsburg helped give Chief Justice Roberts the majority he needed to uphold the ACA under the taxing power, but she, along with Justices Sotomayor, Breyer, and Kagan, would have upheld the ACA under the Commerce Clause and approved the Medicaid expansions under the Spending Clause.
She began with a long justification for the ACA, discussing the size of the nation’s health-care industry, the amount of money spent, the number of people left uncovered by the current system, and efforts by Congress over the past half century to provide health care to the elderly and the poor. The problems of health-care costs and the number of uninsured exceeded what any one state could do to resolve the matter, even within its own borders. Even in Massachusetts, which had a comprehensive health-care plan for its citizens, out-of-state residents sought and received millions of dollars of uncompensated medical and hospital care. Because these problems were national in scope, only the federal government had the power to deal with them. The ACA thus “address[ed] an economic and social problem that has plagued the Nation for decades.” Moreover, “whatever one thinks of the policy decision Congress made, it was Congress’ prerogative to make it. Reviewed with appropriate deference [the ACA’s components] should survive measurement under the Commerce and Necessary and Proper Clauses.”
She then launched into a history of the Commerce Clause, from its inception in Philadelphia, and the Framers’ intent that, as Alexander Hamilton wrote in Federalist 34, “there ought to be a CAPACITY to provide for future contingencies.” The Commerce Clause, therefore, should be read—as the Court had done for most of its history—in an expansive manner. Prior cases had held that Congress could regulate not only interstate economic activities but also intrastate actions that, “viewed in the aggregate, have a substantial impact on interstate commerce.” After going through numerous examples of how broadly the Court had interpreted the Commerce Clause, she declared that the chief justice had relied on a “newly minted constitutional doctrine. The commerce power does not permit Congress to ‘compel individuals to become active in commerce by purchasing a product.’ ”
Ginsburg lacerated Roberts’s reasoning. The chief justice admitted that all Americans participate in the market for health services over the course of their lives but then claimed that the uninsured cannot be considered “active in the market for health care,” because one could not determine the proximity between their status today and their future needs. This, Ginsburg pointed out, had been one of the reasons for congressional action: one could not know when health care would be needed, and so it was important that when the need arose, individuals have the necessary insurance coverage. Beyond the fallacy of Roberts’s reasoning, this was not a decision for him to make: policy making belonged in Congress, not in the Court. She concluded her section on the Commerce Clause by noting,
In the early 20th century, this Court regularly struck down economic regulation enacted by the peoples’ representatives in both the States and the Federal Government. The Chief Justice’s Commerce Clause opinion, and even more so the joint dissenters’ reasoning, bear a disquieting resemblance to those long-overruled decisions. Ultimately, the Court upholds the individual mandate as a proper exercise of Congress’ power to tax and spend “for the . . . general Welfare of the United States.” I concur in that determination, which makes the Chief Justice’s Commerce Clause essay all the more puzzling. Why should the Chief Justice strive so mightily to hem in Congress’ capacity to meet the new problems arising constantly in our ever-developing modern economy? I find no satisfying response to that question in his opinion.
Why did my colleagues in the profession choose these three? It is too early to know whether any of them will be part of the canon, but all three do have certain traits in common, traits that are found in many of the prophetic dissents that have played such an important role in the constitutional dialogue. First, they set out the problem before the Court in a clear manner but in such a way as to support both their jurisprudential disagreement with the majority and what they consider the “correct” argument. It is not so much that the dissenters and the majority are looking at different scenarios: Warren McCleskey was, in fact, convicted of murder; Congress did enact a statute providing for a special counsel who did not answer to the president; and the Affordable Care Act did require an individual mandate and Medicaid expansion.
But Brennan told the McCleskey story in the context of a criminal justice system that consistently penalized African Americans more harshly than white defendants. Scalia talked about the special counsel within the broad ideas of separation of powers as he divined that theory in the constitutional text. Ginsburg looked at the individual mandate and Medicaid provisions within the larger story of the health-care crisis in America.
All three forcefully explained why they believed the majority reasoning to be wrong and, more important, then provided what they considered a better constitutional argument. They laid out their conclusions convincingly, with great reliance on prior decisions and a strong rationale for why their views should be adopted.
Whether these dissents will eventually become the law is unknown. The fact that a majority of the country still supports capital punishment makes it unlikely that the efforts of Brennan, along with Thurgood Marshall, will prevail in the near future. But should the justices at some point begin to question the application of the death penalty, as they did in the late 1960s, Brennan’s opinion will be there, ready to guide them. Congress allowed the independent counsel law to expire, but situations are always arising that appear to blur the lines between executive and legislative authority. In such instances, there will undoubtedly be challenges, and as of now Scalia’s dissent remains the strongest case yet made for a textualist approach to understanding separation of powers. Justice Ginsburg’s dissent argued convincingly that the majority misunderstood the full parameters of the Commerce Clause and had turned away from its history and a century of expansive interpretation of the commerce power. While it is unlikely that the ultraconservative wing of the Republican Party will endorse any large new government program, political fortunes vary, and in time a more liberal Congress may be elected that will have an activist agenda. When those laws, whatever they may be, are challenged, the Sebelius dissent will be there to explain why and how the Commerce Clause empowers Congress to act.
Each of the three is, in the words of Charles Evans Hughes, “an appeal to the brooding spirit of the law, to the intelligence of a future day.”
In November 1985, Justice William Brennan gave the Tobriner Memorial Lecture at the University of California Hastings College of the Law and titled it “In Defense of Dissents.” By then, Brennan had sat on the high court for nearly three decades, and after the liberal Warren Court had transmuted into the conservative Burger Court, he had become one of the leading dissenters. As he told his audience, in his first term on the bench he had written sixteen opinions, not one of them a dissent. In the October 1984 term, he had written 56 opinions, 42 of them dissents. In a thoughtful and at times introspective mood, Brennan then explained to his audience why he believed so strongly in dissents and their importance.
Borrowing from George Orwell, he characterized dissent as an act “of saying I, of imposing oneself upon other people, of saying listen to me, see it my way, change your mind.” Aside from pointing out what the author believes are flaws in the majority opinion, the dissent “safeguards the integrity of the judicial decision-making process by keeping the majority accountable for the rationale and consequences of its decision.” Even the legal philosopher Karl Llewellyn, who for the most part opposed separate opinions, conceded that dissents helped “ride herd on the majority.” In a similar manner, the dissent may strengthen the lim- its of the majority, preventing it from sweeping too broadly—a form of damage control.
Brennan’s most intriguing comment came when he asked what made certain dissents enduring, such as Harlan I in Plessy and Brandeis in Olmstead. These are the dissents, he said, “that often reveal the perceived congruence between the Constitution and the ‘evolving standards of decency that mark the progress of a maturing society,’ and that seek to sow seeds for future harvest. These are the dissents that soar with passion and ring with rhetoric. These are the dissents that, at their best, straddle the worlds of literature and law.”
Probably no other member of the Court fought so hard for the idea of a living Constitution as did Brennan, because he strongly believed that as society evolved, the Constitution had to take into account changes not only in the economic and physical aspects of society but in its moral attitudes as well. Not all dissents, of course, are addressed to this issue, but Brennan is right that the great dissents, ones that we have looked at in this book, have been markers on the road from the past to the present and the future:
Stephen J. Field, seeking to expand the meaning of due process to include a wide variety of rights available both to the individual and to business.
John Marshall Harlan I, objecting to the segregation that flowed directly from slavery and urging that the Constitution is color-blind, an ideal yet to be achieved.
Oliver Wendell Holmes Jr., breaking from a past that allowed constraints on free speech and arguing for a freedom of expression that knew few bounds. Louis D. Brandeis, reaching back into the origins of the Fourth Amendment to find a right to privacy to protect individuals in a world where the right to be let alone was endangered on all sides.
Wiley Rutledge, demanding that the victor’s treatment of the vanquished adhere to traditional ideas of due process.
Hugo L. Black, drawing on his own experience as a lawyer, and arguing that in order to have a fair trial, a defendant needed the benefit of counsel.
In all these instances, the dissenter spoke for a future that not only had not arrived but in some cases could not even be guessed at. It is not, as Mark Tushnet tells us about a great dissent, that “it anticipates some social or political change that will make its doctrine seem the right one, but because its vision of democracy and the Constitution and its rhetoric themselves contributed to making its doctrine seem correct.” Although they did not use the phrase “evolving standards of decency”—a term that Brennan used often—they might have done so, because in each of those dissents we see a justice trying to limn how the Constitution should be interpreted in light of changing social conditions. For Brennan and others, the Constitution’s vitality depends on an interpretation that addresses the immediate needs of the community. “When a justice perceives an interpretation of the text to have departed so far from its essential meaning, that justice is bound by a larger constitutional duty to the community, to expose the departure and point toward a different path.” The great dissents have all pointed “toward a different path,” and in so many instances that has ultimately been the path the Court and the country have taken.
From Dissent and the Supreme Court. Used with permission of Vintage. Copyright 2015 by Melvin I. Urofsky.