Sustained Dissent and the Extended Deliberative Process

Article excerpt


In the summer of 2012, in American Tradition Partnership, Inc. v. Bullock, (1) the Supreme Court of the United States summarily reversed a decision of the Montana Supreme Court, which had upheld a state statute regulating independent political expenditures by corporations. (2) In a brief per curiam opinion, the Court reaffirmed its decision in Citizens United v. FEC (3)--a 2010 case which held that independent corporate political expenditures are a form of political speech protected by the First Amendment (4)--and declared that "[t] here can be no serious doubt" that "the holding of Citizens United applies to the Montana ... law." (5) This, itself, is hardly noteworthy; the Court found that petitioners failed to meaningfully distinguish the case from Citizens United, (6) and, adhering to precedent, disposed of the case without much discussion. What is noteworthy, however, is that, notwithstanding the per curiam reversal, Justices Breyer, Ginsburg, Sotomayor, and Kaganjoined in a dissenting opinion that went out of its way to explicitly reject the holding of Citizens United, (7) despite the existence of a factual basis upon which the dissenting Justices could have merely distinguished the case. (8) Relying on Justice Stevens's initial dissent, Justice Breyer reiterated that there exists a substantial body of evidence that independent corporate political expenditures are likely to lead to fraud and corruption--a finding that directly contradicts the majority opinion in Citizens United. (9) Freely admitting that he did not have the votes to overturn the precedent, Justice Breyer nevertheless refused to adhere to Citizens United and advocated the Court's reconsideration of its validity. (10)

Given the doctrine of stare decisis (11) and the Court's practice of adhering to precedent, (12) the fact that four Justices refused to accept the law handed down just two years prior in Citizens United is cause for inquiry. It is important to note that this was not an initial dissent; those Justices with views hostile to the majority opinion in Citizens United, including Justice Breyer, had the opportunity to dissent in that case. And while the doctrine of stare decisis is not an absolute command, (13) the factors that traditionally justify departing from stare decisis were not present in American Tradition Partnership. (14) Indeed, Justice Breyer admitted that his dissent in the latter case was based entirely on the objections Justice Stevens raised in the prior case. (15) So, given that the question presented to the Court had already been "settled" by Citizens United, how can the dissenters justify their refusal to accept the rule of law that case decided?

It is possible that, in American Tradition Partnership, Justice Breyer was planting the seeds of "sustained dissent"--described as "the practice of continually repeating resistance to a decision even years after the decision has become law." (16) If this is true, what does it mean for the precedential value of Citizens United? More importantly, what does it mean for the Court as a general matter? The practice of sustaining one's dissent is controversial, and by no means rare, (17) and raises important questions about the nature of stare decisis and precedent, the proper role of dissent, and the institutional legitimacy of the Supreme Court.

Part I of this Note will describe the practice of sustained dissent, exploring why Justices engage in it, classifying the possible justifications for the practice, and highlighting those factors that may affect a Justice's decision to sustain his or her dissent. Part II will present the skeptical view of sustained dissent--embodied in various scholarly articles which are critical of the practice--and consider the potential negative consequences those articles raise, including the potential to harm reliance interests on the Court's decisions and even the legitimacy of the Court as an institution. This Part will also identify the very limited circumstances in which those scholars would tolerate sustained dissent and will examine their preferred alternative to the practice. …


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