Penn Undergraduate Law Journal
  • Home
  • About
    • Mission
    • Masthead
    • Faculty Advisory Board
    • Partner Journals
    • Sponsors
  • Submissions
  • Full Issues
  • The Roundtable
    • Pre-Law Corner
  • Events
  • Contact
    • Contact
    • Apply
    • FAQs
  • Home
  • About
    • Mission
    • Masthead
    • Faculty Advisory Board
    • Partner Journals
    • Sponsors
  • Submissions
  • Full Issues
  • The Roundtable
    • Pre-Law Corner
  • Events
  • Contact
    • Contact
    • Apply
    • FAQs

The Roundtable


Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.


INTERESTED IN wRITING FOR tHE rOUNDTABLE?

The Value of Dissent on the Supreme Court

10/6/2015

0 Comments

 
Picture
By Alicia Kysar

Alicia Kysar is a senior at Columbia University studying English and Political Science with a concentration in Pre-Law.

In the legal community, the role and importance of dissenting opinions in Supreme Court decisions has been deeply controversial and often questioned. For the first twenty years after the establishment of the US Supreme Court, justices initially each issued independent opinions. Since there existed no prevailing opinion, confusion regarding the judgment of the Court abound, despite there being only six justices serving at the time. It was only when John Marshall became Chief Justice in 1801 that he changed the system to that which we have today: a system in which the Court issues an official, majority decision, with each justice given the option of writing his or her own dissent or concurrence. [1]

Since then, dissenting opinions have proven to be crucial to the integrity of the Supreme Court and to its proper functioning. The most obvious reason for allowing justices to publish their dissenting opinions is that the legacy each justice leaves behind is his or her history of signing on to Court decisions. If the Supreme Court operated under a system that did not allow for the formally documented expression of dissenting opinions, justices would then be forced to sign on to judgments with which they disagreed. It is both cumbersome and impractical to hope for a unanimous decision on each case, and furthermore unethical to compel any justice to sign a decision which he or she does not support. Justice Felix Frankfurter, who served from 1939 to 1962, defined the sum of a justice’s decisions as “the thought and action of a lifetime.” [2] Indeed, this legacy cannot and should not be swayed to achieve unanimity.


Kevin Stack, a professor of law at Vanderbilt University, advanced the idea of a deliberative democracy, which he defined as “the basic idea … that the architects of the Constitution chartered government through representatives and critically through an assembly of representatives, so that the representatives would deliberate together toward a determination of the common good.” [3] The central idea behind his theory is that the Founding Fathers wrote the American Constitution to allow for a democracy shaped around ongoing, explicit deliberation about the state of the country and the changes that should be enacted. The nature of dissents in Supreme Court decisions embodies Stack’s ideal of a deliberative democracy by providing the public with insight into the various expert legal positions that surround a specific issue, and laying out the deliberations that would otherwise occur entirely behind the closed doors of Supreme Court chambers. [4]

Furthermore, justices are not elected, but nominated and confirmed by elected officials. As such, they are accountable to the people, and in order to be so, they must be truthful to the people. Justices must be able to state what each of their opinions are on a case if they choose, regardless of how they vote during the deliberations in chambers. Justice Joseph Story, an associate justice of the Court from 1811-1845, argued, “upon constitutional questions, the public have a right to know the opinion of every judge who dissents from the opinion of the Court and the reasons of his dissent.” [5] Although many argue that dissenting opinions serve to weaken the authority of the court or to confuse the actual rulings, dissenting opinions in Supreme Court cases not only help the Court fulfill its responsibility in a “deliberative democracy,” but it also allows it to play its role as an advocate for minority groups.

However, others believe that since it is the majority decision that bears the most significant impact upon the rulings of lower courts, dissenting opinions are ostensibly unnecessary, seemingly standing only to increase bickering between the justices, rather than imparting any actual value to the issue at hand. One critique of a system that allows for dissenting opinions is that it runs the risk of confusing lower courts with the diluted judgments of the Supreme Court. This confusion may be created when writers of minority decisions infamously distort the ruling of the majority into a straw man argument in order to bolster their own cases. [6] On the other hand, however, supporters of this system argue that the general public and the judges of lower courts need only read the majority decision to know what the actual judgment of the Court is, and that if they are reading the dissent, they presumably have already read the majority decision.

Other scholars worry that the dissents are merely a “confession of failure to convince the writer’s colleagues,” and as such are harmful to the public perception of the justices’ argumentative prowess. [7] However, this objection is valid only under the premise that there is a single objectively right answer for each case that the Supreme Court rules on, and that justices who fail to agree with the majority decision are somehow inferior.

The presence of differing opinions in Supreme Court cases is a controversial topic within jurisprudential thought. Many scholars believe that it not only risks the authority of the Court but also weakens the decisions of the justices. These opposing opinions, however, are at the core of the reasoned discussion and reevaluation of national principles and help preserve the integrity of the Court. While there have been several proponents of doing away with the exercise of written dissents in each case, it is nonetheless a tradition that remains since 1801, and one that does not seem to be in any danger of disappearing.


[1] “John Marshall - Supreme Court | Laws.com.” Accessed October 4, 2015. http://supreme-court.laws.com/john-marshall.
[2] “Felix Frankfurter.” TheFreeDictionary.com. Accessed October 4, 2015. http://legal-dictionary.thefreedictionary.com/Felix+Frankfurter.
[3] Bennett, Robert William. Talking It Through: Puzzles of American Democracy. Cornell University Press, 2003.
[4] Ibid.
[5] Jackson, Percival E. Dissent in the Supreme Court: A Chronology. Norman: The University of Oklahoma Press, 1969: 17.
[6] Steven A. Patterson. “Dissent in American Courts,” The Journal of Politics 43, 2 (1981): 426-427.
[7] Hasian, Marouf. “Dangerous Supplements, Inventive Dissent, and Military Critiques of the Bush Administration’s Unitary Executive Theories.” Presidential Studies Quarterly 37, no. 4 (December 1, 2007): 693.
​
Photo Credit: Flickr User West Point - The U.S. Military Academy

The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.


0 Comments

Your comment will be posted after it is approved.


Leave a Reply.


    Categories

    All
    Akshita Tiwary
    Alana Bess
    Alana Mattei
    Albert Manfredi
    Alexander Saeedy
    Alexandra Aaron
    Alexandra Kanan
    Alice Giannini
    Alicia Augustin
    Alicia Kysar
    Ally Kalishman
    Ally Margolis
    Alya Abbassian
    Anika Prakash
    Anna Schwartz
    Ashley Kim
    Astha Pandey
    Audrey Pan
    Benjamin Ng'aru
    Brónach Rafferty
    Bryce Klehm
    Cary Holley
    Christina Gunzenhauser
    Christine Mitchell
    Christopher Brown
    Clarissa Alvarez
    Cole Borlee
    Connor Gallagher
    Dan Spinelli
    Dan Zhang
    David Katz
    Davis Berlind
    Derek Willie
    Dhilan Lavu
    Edgar Palomino
    Edna Simbi
    Emma Davies
    Esther Lee
    Evelyn Bond
    Filzah Belal
    Frank Geng
    Gabriel Maliha
    Georgia Ray
    Graham Reynolds
    Habib Olapade
    Hailie Goldsmith
    Haley Son
    Harshit Rai
    Henry Lininger
    Hetal Doshi
    Iris Zhang
    Irtaza Ali
    Isabela Baghdady
    Ishita Chakrabarty
    Jack Burgess
    Jessica "Lulu" Lipman
    Joe Anderson
    Jonathan Lahdo
    Jonathan Stahl
    Joseph Squillaro
    Justin Yang
    Kaitlyn Rentala
    Kanishka Bhukya
    Katie Kaufman
    Kelly Liang
    Keshav Sharma
    Ketaki Gujar
    Lauren Pak
    Lavi Ben Dor
    Libby Rozbruch
    Lindsey Li
    Luis Bravo
    Lyndsey Reeve
    Madeline Decker
    Maja Cvjetanovic
    Maliha Farrooz
    Marco DiLeonardo
    Margaret Lu
    Matthew Caulfield
    Michael Keshmiri
    Mina Nur Basmaci
    Muskan Mumtaz
    Natalie Peelish
    Natasha Darlington
    Natasha Kang
    Nayeon Kim
    Nicholas Parsons
    Nicholas Williams
    Nicole Greenstein
    Nihal Sahu
    Omar Khoury
    Owen Voutsinas Klose
    Owen Voutsinas-Klose
    Pheby Liu
    Rachel Bina
    Rachel Gu
    Rachel Pomerantz
    Rebecca Heilweil
    Regina Salmons
    Sajan Srivastava
    Sandeep Suresh
    Sanjay Dureseti
    Sarah Simon
    Saranya Das Sharma
    Saranya Sharma
    Sasha Bryski
    Saxon Bryant
    Sean Foley
    Sebastian Bates
    Serena Camici
    Shahana Banerjee
    Shannon Alvino
    Shiven Sharma
    Siddarth Sethi
    Sneha Parthasarathy
    Sneha Sharma
    Sophie Lovering
    Steven Jacobson
    Suaida Firoze
    Suprateek Neogi
    Takane Shoji
    Tanner Bowen
    Taryn MacKinney
    Thomas Cribbins
    Todd Costa
    Tyler Larkworthy
    Vatsal Patel
    Vikram Balasubramanian
    Vishwajeet Deshmukh
    Wajeeha Ahmad
    Yeonhwa Lee

    Archives

    January 2023
    December 2022
    November 2022
    September 2022
    June 2022
    March 2022
    February 2022
    January 2022
    December 2021
    November 2021
    May 2021
    April 2021
    March 2021
    February 2021
    January 2021
    December 2020
    November 2020
    October 2020
    July 2020
    June 2020
    May 2020
    April 2020
    March 2020
    February 2020
    December 2019
    November 2019
    October 2019
    September 2019
    August 2019
    July 2019
    May 2019
    April 2019
    March 2019
    January 2019
    December 2018
    November 2018
    October 2018
    September 2018
    August 2018
    July 2018
    June 2018
    May 2018
    April 2018
    March 2018
    February 2018
    December 2017
    November 2017
    October 2017
    August 2017
    July 2017
    May 2017
    April 2017
    March 2017
    February 2017
    January 2017
    December 2016
    November 2016
    October 2016
    September 2016
    August 2016
    July 2016
    June 2016
    April 2016
    March 2016
    February 2016
    December 2015
    November 2015
    October 2015
    September 2015
    August 2015
    July 2015
    June 2015
    May 2015
    April 2015
    March 2015
    February 2015
    November 2014
    October 2014
    August 2014
    July 2014
    June 2014
    May 2014
    April 2014
    March 2014
    December 2013
    November 2013
    October 2013
    September 2013

Picture
Picture
​