Senate Democrats gripe that Texas Supreme Court Justice Priscilla Owen and California Supreme Court Justice Janice Rogers Brown have authored dissents. According to their detractors, the dissenting views prove them outside the mainstream and unfit for appointment as federal appellate judges. To accept the argument as a general standard for judicial selection would transform constitutional law into a petrified forest. As with the physical sciences, progress in the law begins with challenges to orthodoxy.
Without Einstein’s questioning of Newton, physics would have been stunted. Without Galileo and Copernicus doubting Ptolemy, astronomy would have stagnated. And without Supreme Court Justices disputing conventional wisdom, constitutional law would have dimmed rather than shined. Justices Owen and Brown stand on hallowed ground in dissenting from their colleagues.
Supreme Court Justice John Marshall Harlan was disparaged by contemporaries as a maverick. Constitutional law, however, is indebted to his intellectual boldness and courage. In The Civil Rights Cases (1883), Justice Joseph Bradley, writing for an 8-1 majority, declared the 1875 Civil Rights Act unconstitutional. It prohibited racial discrimination in the enjoyment of accommodations of inns, public conveyances and places of amusement. Justice Bradley insisted that Congress was impotent to attack private acts of racial oppression as badges or incidents of slavery under the 13th Amendment. Bradley succumbed to the weight of post-Reconstruction bigotry, which bowed to the Ku Klux Klan, black disenfranchisement and lynchings: “When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws… . There were thousands of free colored people in this country before the abolition of slavery, enjoying all the essential rights of life, liberty and property the same as white citizens; yet no one, at that time, thought that it was any invasion of his personal status as a freeman because he was not admitted to all the privileges enjoyed by white citizens, or because he was subjected to discriminations in the enjoyment of accommodations in inns, public conveyances and places of amusement. Mere discriminations on account of race or color were not regarded as badges of slavery [by whites].”
In lonely dissent, Justice Harlan assailed the impoverished reasoning of the majority: “It is, I submit, scarcely just to say that the colored race has been the special favorite of the laws. The statute of 1875, now adjudged to be unconstitutional, is for the benefit of every race and color. What the nation, through Congress, has sought to accomplish in reference to that race, is — what had already been done in every State of the Union for the white race — to secure and protect rights belonging to them as freemen and citizens; nothing more. The one underlying purpose of congressional legislation has been to enable the black race to take the rank of mere citizens… . If the [13th and 14th] amendments be enforced, according to the intent with which, as I conceive, they were adopted, there cannot be, in this republic, any class of human beings in practical subjection to another class, with power in the latter to dole out to the former just such privileges as they may choose to grant.”
Justice Harlan’s “unorthodox” view was ultimately vindicated 81 years later in the Civil Rights Act of 1964. In the interim, countess black lives had been arrested, lacerated, shipwrecked and extinguished, a chilling toll that will forever stain the annals of constitutional law.
The Civil Rights Cases is emblematic of the central role of dissent in the evolution of constitutional thinking. Justice Harlan also penned a celebrated dissent in Plessy v. Ferguson (1896) protesting the odious “separate but equal” doctrine. Anticipating the landmark ruling 58 years later in Brown v. Board of Education (1954), the Justice urged in language that thrills the heart of equal justice: “The white race deems itself to be the dominant race in this country… . But in the view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. The Constitution is color-blind, and neither knows or tolerates classes among citizens.”
Justice Oliver Wendell Holmes dissented in Lochner v. New York (1905) from the holding that the 14th Amendment prohibits states from adopting maximum hours laws for bakers. He admonished: “The 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics.” Holmes similarly dissented in Hammer v. Dagenhart (1918), where a majority invalidated a federal law blocking the channels of interstate commerce to products of child labor. The great jurist complained: “[I]f there is any matter upon which civilized countries have agreed — far more unanimously than they have with regard to intoxicants and some other matters over which this country is now emotionally aroused — it is the evil of premature and excessive child labor.” By 1941, Holmes’ dissents were constitutional gospel.
In Olmstead v. United States (1928), both Justice Holmes and Justice Louis D. Brandeis dissented from the doctrine that wiretapping and electronic surveillance escapes the limitations of the Fourth Amendment. Justice Brandeis reasoned: “The makers of our Constitution … sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be left alone — the most comprehensive of rights and the right most valued by civilized men.”
The majority opinion in Olmstead licensed unsupervised government snooping, including the electronic surveillance and wiretapping of Reverend Martin Luther King, Jr. The Supreme Court ultimately embraced the Brandeis dissent in Katz v. United States (1967), which subjects the government’s seizure of conversations to judicial warrants.
Judicial dissent has regularly proven an earmark of prescience, not extremism. Nominees Owen and Brown fall into that cherished class of thinkers. As Justice Brandeis’ observed in Burnet v. Coronado Oil & Gas (1932): “The Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function.”
Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group. He has prepared an Advice & Consent Handbook on the judicial filibuster.