Sustained dissent and the extended deliberative process.

• Author: Heintz, Jon G.
• Position: Introduction through II. The Critical View of Sustained Dissent, p. 1939-1964

INTRODUCTION

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. Part III will respond to the existing literature's criticism of the practice by suggesting that the negative consequences raised in Part II are unlikely to come to fruition, and that by taking an unnecessarily harsh view of sustained dissent, critics foreclose the realization of certain benefits that may result from the practice. This Part will also explore a potential benefit that has been heretofore unexplored--the benefit of the extended deliberative process. Conceding that sustained dissent has perhaps become too common on the modern Court, this Part will maintain that confining its use only to extraordinary circumstances is too extreme a solution. With this greater insight, Part III will conclude by assessing the appropriateness of sustained dissent and will mark outer limits on one's use of the practice to ensure that Justices are restrained and that the practice's costs do not outweigh its benefits. Finally, Part IV will assume that, given the unique dissent, American Tradition Partnership marks the beginning of a sustained dissent from Citizens United, and will examine the appropriateness of such a decision in light of the competing theories discussed in Parts II and III.

This Note does not directly address the general practice of overruling precedent or render a judgment about when that is appropriate. While the implications and consequences of overruling and engaging in sustained dissent overlap, (18) this Note focuses on the practice of rejecting the validity of precedent and refusing to comply with its commands when a Justice knows that such a decision will not effect any immediate change in the rule of law. This approach is taken to keep the scope of the Note appropriately limited.

1. SUSTAINED DISSENT

   Much has been written about the value of dissent generally. (19) Similarly, countless scholarly works and court opinions alike have extolled the virtue of the doctrine of stare decisis and of the Court's adherence to precedent. (20) Typically, these values are not at odds with one another. As Charles Fried explains, collaborative dissent--a dissent where the Justice expresses disagreement but does not question the validity of the holding--"accords quite well with the values of stability and continuity that lie behind the doctrine of stare decisis." (21) However, when dissent is sustained in future cases, and a Justice refuses to accept a prior decision even grudgingly, it becomes much more difficult to reconcile the virtue of dissent with the need to adhere to precedent. This inherent tension raises the question of whether there are other ways in which the practice of sustained dissent might be justified. Part I will describe the practice, establish a clear definition, examine and classify the justifications for engaging in the practice, and identify those factors that might affect a Justice's decision whether to engage in it.

   1. Defining Sustained Dissent

      Perhaps the most famous example of sustained dissent is the long-standing practice of Justices Brennan and Marshall to dissent in every death penalty case since its constitutionality was affirmed in 1976, (22) defiantly refusing to accept the legality of that form of punishment. The seminal, oft-repeated phrase was: "I adhere to my belief that the death penalty is in all circumstances cruel and unusual punishment." (23) Justices Brennan and Marshall repeated this dissent more than 2100 times (24) from 1976 to their retirements in 1990 and 1991, respectively. This is the essence of sustained, indeed perpetual, dissent.

      An examination of the existing, albeit sparse, (25) academic research on this practice yields reasonably consistent definitions. Allison Larsen writes that "[t] he critical feature of a perpetual dissent" is a Justice's "refus[al] to accept the rule of a prior decision (one in which he originally dissented) as controlling authority." (26) Maurice Kelman defines "sustained dissent" as when a Justice, presented with a question decided by a prior case in which the Justice dissented, "cling[s] to his own doctrinal position" and renews his original dissent. (27) Fried defines an "oppositional dissent" as one that "will not accept the decision even grudgingly ... and thus implies a refusal to allow the decision to shelter under stare decisis." (28) Justice Brennan defined the "special kind of dissent" as one "in which a [J]ustice refuses to yield to the views of the majority although persistently rebuffed by them." (29) While each of these definitions varies slightly from the others, each reflects the same basic practice.

      For purposes of this Note, analysis is not confined only to those cases where a Justice participated and dissented in the precedential case. (30) Instead, it is...