The Practice of Dissent in the Supreme Court

By Stack, Kevin M. | The Yale Law Journal, June 1996 | Go to article overview

The Practice of Dissent in the Supreme Court


Stack, Kevin M., The Yale Law Journal


The United States Supreme Court's connection to the ideal of the rule of law is often taken to be the principal basis of the Court's political legitimacy.(1) In the Supreme Court's practices, however, the ideal of the rule of law and the Court's political legitimacy do not always coincide. This Note argues that the ideal of the rule of law and the Court's legitimacy part company with respect to the Court's practice of dissent. Specifically, this Note aims to demonstrate that the practice of dissent--the tradition of Justices publishing their differences with the judgment or the reasoning of their peers(2)--cannot be justified on the basis of an appeal to the ideal of the rule of law, but that other bases of the Court's political legitimacy provide a justification for this practice.

The Note thus has two aspirations. First, it seeks to provide a justification for the practice of dissent in the Supreme Court. Second, in pursuit of that justification, it strives to make a more general point about the relation between the rule of law and the Court's legitimacy. If the ideal of the rule of law cannot justify an element of the Court's practice that contributes to its legitimacy, then that legitimacy must be more than a product of the Court's connection to the rule of law. Part I attempts to show that the ideal of the rule of law cannot justify the practice of dissent. It examines two approaches to establishing a principled connection between the Supreme Court and the ideal of the rule of law, and argues that they both fail to account for the practice of dissent. Part II presents a justification for the practice of dissent through consideration of the constitutional commitment to the ideal of deliberative democracy. The basic argument is that the Supreme Court's legitimacy depends in part upon the Court reaching its judgments through a deliberative process,(3) just as Congress's legitimacy depends in part on its members enacting legislation through such a process. Given the secrecy of the Court during the formation of its judgments, the practice of dissent is necessary to manifest the deliberative character of the process through which the Court reaches its decisions.

In furnishing a justification for the practice of dissent, this Note has primarily conceptual concerns; it provides little discussion of the content of dissenting opinions or the reasons why a Justice might choose to dissent in a particular case.(4) Rather, the proposed justification of dissent provides a framework within which to assess these issues, and in so doing, begins the task of accommodating this enduring aspect of the Supreme Court's practice within constitutional theory.

I. The Rule of Law and the Problem of Dissent

One aim of constitutional theory is to establish a principled connection between the practices, opinions, and judgments of the Supreme Court, and the ideal of the rule of law. The extraordinary powers of the Court make this project both compelling and difficult. When the Court strikes down acts of legislatures, the Court threatens to advance not the rule of law, but rather that of the particular individuals on its bench. The Court's own shifts in opinion, particularly shifts that accompany changes in its membership, similarly threaten the Court's connection to the rule of law. For the Court to serve successfully as the guardian of the rule of law, there must be a principled connection between it and this ideal.

The question of whether the ideal of the rule of law can provide a justification for the practice of dissent requires examining the Court's connection to this ideal. For dissent is an element of the Supreme Court's institutional practice, and as such, it cannot be justified independently from a conception of the Court's link to the rule of law. That is, any justification of dissent based on an appeal to the ideal of the rule of law would have to be part of a conception of the Court's association with that ideal. …

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