Academic journal article Albany Law Review

Justice Michael A. Musmanno and Constitutional Dissents, 1967-68

Academic journal article Albany Law Review

Justice Michael A. Musmanno and Constitutional Dissents, 1967-68

Article excerpt

The practice of dissenting opinions in both federal and state courts has long been a part of the adjudication process of courts. Commentary in the secondary literature of periodicals has been ongoing for over a century. One can review early articles by Hampton Carson, (1) and Justice Alexander Simpson, Jr., of the Pennsylvania Supreme Curt, (2) or later writers like Justice Michael A. Musmanno of the Pennsylvania Supreme Court, (3) and more recently, Justice William J. Brennan, Jr. (4) of the United States Supreme Court. In Pennsylvania, court reporting of state cases began with Alexander James Dallas' Reports of Cases Ruled and Adjudged in the Courts of Pennsylvania, Before and Since the Revolution in 1790. (5) The early reports were commercial ventures by a series of reporters totaling some sixty-four volumes before 1845. (6) In 1845, the General Assembly passed an act instituting an official court reporter (7) and for a new title to the now-official court reports, the Pennsylvania State Reports. (8) Section 2 provided for the justices to write their opinions and to submit them to the reporter, but a proviso added "no minority opinions of the said court shall be published by the said reporter." (9) Later acts in the century modified the 1845 act; (10) as late as 1943, statutory law declared: "The decisions of the Supreme Court of Pennsylvania and of the Superior Court shall be published under the supervision of the State Reporter," (11) which included minority opinions. (12)

Michael A. Musmanno, Associate Justice of the Pennsylvania Supreme Court, issued more than 500 dissents during his sixteen years on the bench. Justice Musmanno was already famous when he succeeded to the bench in January 1952, having been involved as a critic of the Sacco-Vanzetti trial in 1927, a judge of the Allegheny County courts from 1932 to 1951, a judge at the Nuremberg Trials after World War II, and the author of several books and articles. (13)

Justice Musmanno was no stranger to dissenting opinions. Upon ascending to the supreme court, he quickly began to publish dissenting opinions. (14) The case of In re Tribune Review Publishing Co. (15) in 1954 led to the only reported case in which a supreme court justice sued the official court reporter over the failure of the reporter to publish his dissenting opinion and which had to be determined by his colleagues sitting on the court against him. (16) He also wrote an article on the value of dissenting opinions in the Dickinson Law Review. (17) Soon after, in 1956, Justice Musmanno published his own book of supreme court dissents after serving on the court for only four years. (18) In the book, he is featured with Dean Roscoe Pound of Harvard Law School who wrote an introduction to the work. (19) From 1956 to 1968, Justice Musmanno wrote more than 500 opinions and 275 dissents.

Justice Musmanno is famous for his writing of court opinions. His legal craftsmanship, use of literary expression, and strong arguments make his opinions extremely interesting to read. (20) For purposes of this article, I have only concentrated on four opinions written at the end of his long career. One case, containing a concurring opinion, coincides with Arlen Specter's mayoralty race in Philadelphia in 1967, but it primarily deals with a district attorney's power to subpoena individuals. (21) Two cases--one containing a separate opinion and the other having a strong dissent by Justice Musmanno--deal directly with Arlen Specter's mayoralty race. (22) The last case, Stander v. Kelly, involves an attempt to stop the primary election of 1968 dealing with the passage of a new judiciary article proposed by the Constitutional Convention of 1967-68. (23) The case of Stander v. Kelley was, unfortunately, Justice Musmanno's last published decision with his death occurring on October 12, 1968, the day after the decision. This decision was a preliminary decision before a full opinion was delivered after Justice Musmanno's death in March 1969 upholding the constitutionality of both the constitutional convention and article V of the Constitution of 1968. …

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