Judicial Dissent

How did C.J. John Marshall forge so many unanimous opinions?

1) Back in his day, all the justices lived in the same hotel and the court was in session. This forged a sense of friendship which he took advantage of. 2) During social hours, Marshall would offer to write the opinion for other justices. 3) In doing so, he would modify the majority opinion to suit the objections of his colleagues. 4) Prior to him being chief justice, all justices read their own opinions from the bench. He changed this so that only the majority opinion was read from the bench.

What was Chief Justice John Marshall's opinion of judicial dissents?

1) He believed SCOTUS is most powerful when it speaks with one unified voice. 2) He believed a unanimous opinion of the court indicated to the country that the law is both clear and predictable. 3) He believed a divided, dissenting opinions harmed the authority and prestige of SCOTUS.

What were Justice Louis Brandeis' reasons for NOT giving a dissent?

1) If the majority makes ameliorating changes. 2) If he believed the majority's verdict would not cause real damage in future legal cases. 3) A dissent should only be written in important cases when important issues are at stake.

Why do people write dissents?

1. A justice or judge writes the dissent because she wants her disagreement with the majority opinion to be officially recorded. 2. "In house impact" - The goal of writing a dissent is sometimes to influence the writer of the majority opinion to refine her arguments. The mark of a good dissent is that after reading it, even a member of the majority opinion has doubts. 3. For posterity - She writes a dissent because she wants to affect future court cases. 4. To promote public scrutiny of the court. 5. A justice issues a dissent with the hope that her words will prod congress to initiate legislation to correct what she sees as the mistakes of the majority.

What did Justice Louis Brandeis believe in doing?

He believed in using facts and data when writing his opinions and when deciding on a case.

Outline Plessey vs Furguson

Issue of LA's Separate Car Act. The majority had argued it was legal on grounds of "separate but equal. It thus resulted in the legalization of segregation in all aspects of Southern life. J. John Marshall Harlan dissented: 1 The act was a clear violation of the equal protection clause because it treats people differently based on race. 2 The law should be colorblind and all should be equal before the law. 3 The U.S. is moving towards 2 societies: one white, one black.

Scott vs. Sandford.

Question of whether Dred Scott should be freed. The majority argued that the Founding Fathers never intended African Americans to be citizens. Thus, Dred Scott was not a citizen, nor could any African American be a citizen, and consequently Scott could not sue in federal court for his freedom. Slavery continued and furthermore, the Missouri Compromise is struck down. Dissent: It is clear that African Americans have been part of "the people" since the beginning. Black males in 5 northern states had voting rights at the time the Constitution was adopted and thus it is not true that the Constitution was made exclusively by or for the White race. Congress responded with the 14th Amendment. A) Anyone born or naturalized in the U.S. is a citizen of the U.S. and the state in which they reside. B) No state shall make or enforce a law that abridges the privileges and immunities of its citizens. C) No state shall deny to anyone within its jurisdiction the equal protection of the laws.

Brown vs. Board

Segregation in public schools based on race is a violation of the Equal Protection clause, thus overruling the Plessy precedent. SCOTUS was unanimous in its decision and felt that it had to be given: A) the decision would likely be received angrily in the South, thus a united front needed to be presented by the court. B) Any dissenting opinion would be seized upon by advocates of segregation to give them legal legitimacy. Note that Brown could have outlawed segregation all together in all areas of public life. But it didn't. The justice compromised with one another and only pushed for education in order to get a unanimous decision.

Betts vs. Brady

The issue was whether a poor person deserved legal council by the state. The majoirty decided in some cases legal council is needed to ensure a fair trial. But in other cases it is not. The result is it was up to the states to decide. J. Hugo Black: This practice is not fair because it subjects a presumably innocent person to a greater danger of conviction solely because of her poverty. Thus her innocence cannot be determined from the trial because legal council has been denied and one cannot reasonably conclude that her cases has been adequately presented.

What is a Judicial Dissent?

The written opinion of a justice or judge who disagrees with the majority verdict.

Koramatsu vs. The U.S

he majority argued that the U.S. has a right to protect itself from espionage during wartime which outweigh the civil liberties of Japanese Americans. J. Frank Murphy: 1. The forced detention of Japanese Americans falls into the abyss of racism. Such a practice by the U.S. resembles the horrible treatment of minority groups by the dictatorial regimes the country was trying to destroy. 2. He then compared the detention of the Japanese to the hypothetical detention of Americans of German and Italian ancestry. Note, it didn't happen. Which makes it probable race was more an issue here than national emergency.

What are the characteristics of a good dissent?

it is incisive and closely reasoned; it pinpoints the weaknesses of the majority's position and attacks them with arguments that will endure into the future.