The practice of dissent in the Supreme Court.

• Author: Stack, Kevin M.

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.

1. 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.

   In this part, I investigate two approaches to establishing a connection between the Court and the ideal of the rule of law, and argue that the practice of dissent challenges both of them. The first, which I call the institutional approach, emphasizes the ways in which the institutional voice of the Court discourages an appearance of conflict with the ideal of the rule of law. I take my depiction of this approach from the recent work of Paul Kahn.(5) The second, which I call the interpretive approach, constructs a conception of objectivity or determinacy in adjudication; the application of such a conception to the Court recommends its consistency with the rule of law.(6) For this approach, I examine the theory of judicial interpretation that Ronald Dworkin presents in Law's Empire.(7) These two approaches correspond to what I take to be two principal aspects of the ideal of the rule of law. The interpretive approach addresses the requirement of the rule of law that legal decisions stand in a certain sort of justificatory relation to legal principles that themselves have an established political pedigree. The institutional approach attends to the requirement that legal decisions not appear to be relative to the particular individuals who make them. The institutional and interpretive approaches thus emphasize different features of the Court's practice as well as these different aspects of the ideal of the rule of law.

   Neither of these approaches can accommodate the practice of dissent. The institutional approach depends upon suppressing precisely that which dissent makes apparent: that behind the "opinion of the Court" is a majority of the Justices.(8) Within the terms of the institutional approach, dissent is something to be hidden, not justified. Dissent is also a problem for the interpretive approach. A dissenting Justice's articulation of an alternative legal, regime challenges the association of the "opinion of the Court" with legal determinacy. Given that a justification of dissent based on an appeal to the rule of law would have to be part of a conception of the Court's association with the rule of law, the failure of institutional and interpretive approaches to account for the practice of dissent provides grounds for the conclusion that the rule of law cannot justify this practice.9 That these approaches cannot accommodate dissent does not necessarily imply, however, that there is an incompatibility between the practice of dissent and the commitment of a legal system to the ideal of the rule of law. The argument (and the problem of dissent) is rather that the rule of law is inadequate to justify this practice.

   1. The Institutional Approach

      For an institutionalist, the connection between the Court and the rule of law depends centrally on the Court's public statements not appearing to be the statements of individual Justices. On this view, the project of linking the Court with the rule of law is the same as the project of distancing the voice of the Court from the voices of its individual members. This particular approach derives from a negative claim about the ideal of the rule of law: "[T]he rule of law is not the rule of men."(10)

      The institutional approach to the Court would not be possible had Chief Justice Marshall not introduced the practice of announcing a single authoritative "opinion of the Court." For most of the Court's first decade, it followed the practice of the King's Bench: Each of the Justices delivered a separate opinion stating his own view of how the case should be decided.(11) Marshall abandoned the practice of delivering seriatim opinions in the first case decided after he became Chief Justice.(12) In that case, and in many that followed, instead of the opinions of the five Justices then on the bench,(13) a single opinion was announced, with the heading: "Marshall, Ch. J. delivered the opinion of the court."(14) Marshall's introduction of the "opinion of the Court" gave the Court an institutional voice, a voice over and above that of its individual members.(15)

      For the institutional approach, it is critical that the position of the Justice who delivers the "opinion of the Court" differs from that of a Justice who speaks or writes on his or her own behalf. On this view, the Justice who delivers the opinion of the Court takes the role of reporter; he or she functions as a message carrier, or at most a reconstructive voice for the decision and reasoning of the institution. The opinion, as Paul Kahn suggests, does not announce the authorship of a particular Justice but "[i]nstead . . . locates its origin and authority wholly in the institution."(16) So while an author has a privileged perspective on the meaning of his or her own work, the Justice who delivers the opinion of the Court has no special interpretive position in relationship to its meaning. The opinion is the opinion of the Supreme Court of the United States, not that of an isolated Justice; once it is announced, each Justice has as good a claim on its meaning as the Justice who delivered it.(17)

      Viewed in this way, the introduction of the "opinion of the Court" creates a division between the individual members of the Court and the Court as a corporate body. This division furnishes an institutional connection between the Court and the rule of law. For once the "opinion of the Court" is disconnected from the individual Justices comprising the Court's membership, it follows from the institutionalist's own terms that the Court represents the rule of law. After all, what matters to the institutionalist view is that the rule of law is not the rule of men. The separation between the individual Justices and the "opinion of the Court" thus can associate the Court and the rule of law. As Kahn puts it, "Since the opinion is not a possession of the individual judge, it can appear to be the possession of all."(18)

      The practice of dissent thwarts this approach to the Court's predicament by challenging the separation of the Court as...