The Supreme Court and Dissent: Lessons Learned from Judicial Discourse
O'Connor, Bernard J., Journal of Organizational Culture, Communications and Conflict
Dissent is a defining characteristic of democratic society. One need only recall how freedom to dissent was denied to student protesters in Beijing's 1989 Tiananmen Square, or to the millions of victims who died in Stalinist gulags because their political or religious convictions were labeled non-compliant with the Soviet dictator's policies for his socialist enterprise. Indeed, American constitutional experts point with satisfaction to the fact that the citizen's capacity to dissent, to proclaim variance with the government's declared positions or practice, underscores the Bill of Rights, the Constitution's first ten Amendments. Those rights originated, so to speak, as the price tag for the Thirteen Colonies' ratification of the Constitution itself. The Constitution's seven articles were regarded as lacking provision to safeguard the right of the ordinary citizen to conscientiously oppose governmental action. The nation's founding citizenry retained acute awareness of how they and their ancestral forebears fared poorly at the hands of autocratic European political regimes. Not so in America, they determined. It was dissent from a tyrannical George III, as embodied in the Declaration of Independence (1776), which enabled the genesis of a distinct American republic. And it was a principle of dissent, as reflected in the aforementioned Bill of Rights (1791), which promised to preserve that republic's integrity of civil attitude, its equity in institutional processes and its resolve to solidify the bases for each person's fundamental liberty. (See McKay, 2000, 47-69.)
Among the many contexts in which the current role of dissent is seriously valued and assiduously studied, there are two which appear at first glance to exist in striking contrast. On the one hand, there is the example of corporate structures. The formal academic discipline of organizational communications devotes considerable attention to assessing the influence of dissent upon board room decision making, directorship protocol, supervisory activity and such dynamics as participant morale, loyalty, productivity, accountability, sense of ownership, etc.. A second example derives from the judiciary. Appeals Court judges and Supreme Court justices are entitled to dissent in whole or in part with a majority's prevailing opinion. Unlike that majority's determination, a 'holding' of the court which enjoys subsequent binding authority, the dissent in any given instance has no inherent merit beyond the simple articulation of a contrary stance. But judicial dissent has become a crucial element of the American legal system. Extensive tomes have been penned which attempt to analyze the purported patterns of predictable cues which are said to describe justices' voting behavior. The total impact of such efforts; however, falls far short of an exact science. (See M. G. Hall & P. Brace, 1999.) Still, they attest to the fact that judicial dissent deserves not only scholarly respect, but a recognition that such dissent represents both a necessary latitude in legal reasoning and an alternative response to legal sources. Without either, jurisprudence would surely desiccate.
The literature on dissent provided by organizational research is vast. Similarly, as prior stated, modern legal theorists have yielded a no less impressive bibliography. But what is significant is that no known study addresses the issue as to whether there may be parallelism between the view of dissent espoused by these very different and yet very important spheres of inquiry. The intention of this essay is to examine this uncharted theme. It is the author's position that previous research on judicial dissent has entirely declined to consider implications of justices' dissent from the perspective of what is revealed about the specific nature of dissent expressed in the juridic setting. Because of that avoidance, there is a lack of opportunity for scholars to evaluate the legal species of dissent in terms of whether it is or is not compatible with characteristics of dissent put forth by communications' scholarship. …