Throughout his twenty-eight years on the Court, up to and including the final days of his last term, Breyer insisted on the need to pay attention to consequences. In his view, the Constitution is a practical document designed to guide, not impede, a workable government. During his long tenure, he was known not for passion but for a cool intellectualism. But there was passion in his Parents Involved dissent. Its penultimate line warned, “This is a decision that the Court and the Nation will come to regret.” This book aims to show, years later, that he was right.
On one level, a dissent is a record of failure, a job left undone, a goal not achieved: the author has not managed through the force of reason to change minds. But for Urofsky in his book on Supreme Court dissents, a dissenting opinion is also part of the ongoing “constitutional dialogue” by which constitutional law is made and society itself is shaped. Charles Evans Hughes, who served as chief justice from 1930 to 1941, called dissent “an appeal to the brooding spirit of the law, to the intelligence of a future day.” A dissenting opinion may mark the majority’s handiwork as not only deeply contested, but vulnerable. It can rally the base and inspire like-minded lower-court judges to find creative workarounds to holdings of which they disapprove. Even if only by increments, it can move the law.
Until the early decades of the twentieth century, dissent on the Supreme Court was strongly disfavored. Nearly all decisions were unanimous under a “norm of acquiescence,” in Robert Post’s phrase, that was driven by the belief that dissenting opinions undermined the authority of the Court’s judgments. Justice Louis Brandeis wrote in 1932, “In most matters it is more important that the applicable rule of law be settled than that it be settled right.”
Of course, which “matters” were appropriate for Brandeis’s standard was open to dispute, and the norm began to break down. Scalia, a prolific and enthusiastic dissenter, wrote in 1998 that dissents can “augment rather than diminish the prestige of the Court.” More effectively than an “artificial unanimity,” he wrote, the existence of dissenting opinions makes clear that the Court’s decisions “are the product of independent and thoughtful minds, who try to persuade one another but do not simply ‘go along’ for some supposed ‘good of the institution.’”