Tuesday, August 04, 2015

The Great Dissenters

I don't always agree with Justice Scalia's dissent, but, usually, I find them entertaining. In a recent Washington Post op-ed, however, former Justice O'Connor clerk David Kravitz takes me to task. Mr. Kravitz believes that Justice Scalia's dissents lately ignore compelling arguments and rely, instead, on insults. In honor of the amicable dissent, I've listed four of my favorite dissents. None are antagonistic, but all make great, compelling arguments.

Here's my list (in no particular order):

1. Justice Holmes, Lochner v. New York: Short but effective. In one sentence, Justice Holmes makes his point and guts the majority opinion: "The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not."

2. Justice Kagan, Arizona Free Enterprise Club's Freedom Club Pac v. Bennett: Justice Kagan's introduction is concise and persuasive in ways most legal writing is not. It turns an amorphous constitutional issue into a concrete example.

3. Justice Jackson, Korematsu v. United States: In plain English and with plain logic, Justice Jackson explains why Korematsu's encampment was unconstitutional and dangerous.

4. Justice Harlan, Roth v. United States: Technically concurring in part and dissenting in part, Justice Harlan persuasively explains why the federal government should not have unbounded discretion to outlaw obscenity. And he simply yet powerfully explains why free speech is not a popularity contest: "Many juries might find that Joyce's 'Ulysses' or Bocaccio's 'Decameron' was obscene, and yet the conviction of a defendant for selling either book would raise, for me, the gravest constitutional problems, for no such verdict could convince me, without more, that these books are 'utterly without redeeming social importance.'"

So, what other dissents should go on this list?


Anonymous said...

Perhaps Justice Blackmun in Bowers v. Hardwick, 478 U.S. 186 (1986):

"This case is no more about 'a fundamental right to engage in homosexual sodomy,' as the Court purports to declare, than Stanley v. Georgia (1969), was about a fundamental right to watch obscene movies, or Katz v. United States (1967), was about a fundamental right to place interstate bets from a telephone booth. Rather, this case is about 'the most comprehensive of rights and the right most valued by civilized men,' namely, 'the right to be let alone.' ... I can only hope that ... the Court soon will reconsider its analysis and conclude that depriving individuals of the right to choose for themselves how to conduct their intimate relationships poses a far greater threat to the values most deeply rooted in our Nation's history than tolerance of nonconformity could ever do. Because I think the Court today betrays those values, I dissent."

Anonymous said...

Because this post was elitist, self-congratulatory, obtuse and sucky, I dissent.

Anonymous said...


Your comment was elitist, self-congratulatory, obtuse and sucky as well.

Anonymous said...

Your concurrence with the majority is noted. Of course, it takes at least 2 idiots to birth a shitty opinion.