Sustained dissent and the extended deliberative process.

AuthorHeintz, Jon G.
PositionIII. A More Favorable View of Sustained Dissent through Conclusion, with footnotes, p. 1964-1990
  1. A MORE FAVORABLE VIEW OF SUSTAINED DISSENT

    The concerns discussed in Part II are not without merit. Apprehension over the potential for a delegitimized Supreme Court and judicial decisions unable to foster the necessary degree of reliance is understandable. Nevertheless, while sustained dissent does impose some institutional costs, the practice is not as perilous as the existing academic literature maintains. Properly focused, sustaining in one's dissent can improve the quality of judicial decisions and minimize concerns over decreased reliance, all without harming the public's perception of the Court. Acknowledging that the practice must undoubtedly be constrained by pragmatic and institutional concerns, Justices should not place excessive limits on their use of the practice, as the value of sustained dissent extends beyond its use as merely an act of judicial civil disobedience.

    This Part will respond to the negative consequences raised in Part II--not by suggesting that the concerns implicated are insignificant, but by explaining that it is a tenuous argument, at best, that the Court's engagement in sustained dissent is likely to lead to the consequences feared. After mitigating those concerns, this Part will explore value in the practice that has not been sufficiently discussed by the existing academic literature--namely, that sustaining one's dissent can be an effective means of extending the deliberative process of the Court, leading to judicial decisions that are of higher quality and are better able to garner respect and reliance in the long run. This Part will acknowledge the need for meaningful restraint on the part of Justices, but will ultimately advocate a more substantial role for sustained dissent than the one many scholars deem appropriate. Only after adequately addressing the criticisms raised in Part II and examining the unexplored potential value of sustained dissent can one begin to make an informed judgment about the appropriateness of the practice.

    1. Responding to the Negative Consequences

      As stated above, the concerns raised in Part II are not without merit. The quality and coherence of the Court's decisions, its ability to foster reliance on them, and the Court's broader institutional legitimacy are all of vital importance, not only to our judiciary, but also to our government and the greater principle of the separation of powers. However, opponents of sustained dissent either overstate the negative impact the practice has on these vital interests or fail to adequately account for countervailing benefits the practice can confer.

      Opponents of sustained dissent argue that, because the sustained dissenter removes his oppositional voice from the collaborative judicial process, the practice has a negative effect on the development of the substantive body of law. (164) However, engaging in sustained dissent can actually have a positive, clarifying effect on the doctrine at issue. Much has been written about the value of a good dissent and how it can provide an appropriate context for the majority's decision. (165) For example, a dissent can "demonstrate[] flaws the author perceives in the majority's legal analysis" and "emphasize[] the limits of a majority's decision...." (166) And while a dissent will not always lead to some future correction in the law, that does not mean it is without value; a dissent still can serve as a clarifying, moderating lens through which the majority decision is viewed. (167) And there is no reason that a dissent must cease to have a clarifying, moderating effect after only one iteration. As the Court begins to apply and shape that body of law in future cases, a continued dissenting voice can still serve this valuable purpose. Consider the dissent in United States v. Morrison, (168) where Justices Souter, Stevens, Ginsburg, and Breyer sustained their dissent from United States v. Lopez. (169) In Lopez, the Court limited the reach of Congress's authority to act under the Commerce Clause by holding that simple possession of a firearm was noneconomic activity, and thus it could not, even in the aggregate, have a substantial effect on interstate commerce. (170) The Morrison Court relied on Lopez in determining that, since violence against women was noneconomic activity, it likewise could not satisfy the "substantial effects" test. (171) In dissent, the four Justices reiterated their dissent from Lopez, but applied it to a factual context that placed even greater strain on the Court's analysis in Lopez. (172) Indeed, the argument that noneconomic activity does not have a substantial effect on interstate commerce appeared weaker in the context of Morrison than it did in Lopez. And to the extent the four Justices' continuation of their prior dissent raised this issue in a different factual context, and further pressed the majority's reasoning, the renewed dissent had value. Sustaining one's dissent need not amount to a wholesale rejection of the doctrine of stare decisis; it need not shake the public's faith in the Court. Rather, it is an opportunity for the Justice to continue to point out the majority's flaws, to apply those criticisms to different factual scenarios, and to provide lower court judges with a richer background and context in which to interpret the majority opinion.

      Furthermore, in terms of doctrinal clarity, sustained dissents are valuable for what they are not--distortions of precedent. To the extent a Justice who disagrees with a precedent nevertheless adopts it but applies it unfaithfully, or attempts to twist the precedent to accommodate the outcome he seeks, future holdings become unnecessarily narrow and confusing. (173) These opinions do not represent a true acceptance of the precedent, but rather a compromised approach that can become counterproductive in the long run by muddying the doctrinal waters. Sustained dissent, by contrast, maintains a truly adversarial voice throughout the opinion and promotes clarity in the doctrine. An example of this problem is found in Central Virginia Community College v. Katz, (174) a 2006 case where the Court confronted its prior holding in Seminole Tribe of Florida v. Florida. (175) In Katz, the majority, comprised of the four dissenting Justices from Seminole Tribe and Justice O'Connor, did not purport to overrule Seminole Tribe, but applied its holding very narrowly and in a way the dissenters thought was unfaithful to the precedent. (176) Justice Thomas concluded his dissent by criticizing the majority for, in a sense, overruling Seminole Tribe by subterfuge: "It would be one thing if the majority simply wanted to overrule Seminole Tribe altogether. That would be wrong, but at least the terms of our disagreement would be transparent. The majority's action today, by contrast, is difficult to comprehend." (177) Had the four Justices sustained their initial dissent from Seminole Tribe instead of straining to reach their conclusion without squarely disrupting Seminole Tribe, the doctrine of state sovereign immunity might be more clearly understood and less vexing for lower court judges. (178) With these concerns of clarity in mind, Justice Scalia's partial dissent from Casey is apt--"Reason finds no refuge in this jurisprudence of confusion." (179) Sustained dissent, in contrast to what its detractors may argue, can have a positive effect on the clarity of judicial decisions and coherence of a body of law by maintaining clear terms of disagreement and by decreasing the likelihood that a Justice will accord faux respect to precedent with which he truly disagrees.

      Opponents of sustained dissent further argue that, if Justices insist on engaging in sustained dissent and repeatedly rejecting the validity of the Court's precedent, such behavior will harm the ability of the Court to stimulate the necessary degree of reliance on its decisions. (180) This is an inherent jurisprudential conundrum, however, and is hardly specific to sustained dissent. By tilting the scales too far in the direction of reliance concerns, opponents of sustained dissent unnecessarily impinge on the fundamental role of the Court--arriving at correct interpretations of the Constitution. (181) Moreover, by paying too much respect to reliance interests, the Court dooms itself to "keep repeating and reaffirming[] mistakes forever," foreclosing the possibility that the Court could correct its own harmfully erroneous decisions, or that the political branches could do so. (182) Admittedly, reliance is an important judicial consideration. It is most relevant when issues of contract or property are concerned (183)--those areas of the law where, as Justice Brandeis said, it is better that the law be settled than right. (184) But concerns for reliance must not be made to dominate countervailing interests, such as the interest in arriving at a correct interpretation of the highest precedent--the Constitution. (185) Particularly where the precedent demonstrably conflicts with the Constitution, rendering reliance on it less reasonable, the role of reliance would be significantly diminished. (186)

      Moreover, it is not a foregone conclusion that sustained dissent will, in fact, harm reliance interests; indeed, if properly focused, the practice could strengthen reliance. Assuming that sustained dissent would not be perpetual, but rather would be abandoned once the Justice realizes that the competing view has ultimately prevailed, the more difficult path taken to respected precedent would convey a greater finality to the judicial process, and thus foster greater reliance. (187) Under this theory, because the rule of law would have been tested in multiple factual contexts and subject to many iterations of debate and dissent, the final outcome would be battle tested and afforded greater respect. (188) This position, developed more fully in Part III.B, is contestable, but the point is that potential harm to reliance interests needs not be a deal...

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