The Brooding Spirit of the Law:
Building Dissensus on the U.S. Supreme Court
Pamela C. Corley
Southern Methodist University
Artemus Ward
Northern Illinois University
Annual Meeting of the
Southern Political Science Association
New Orleans, LA
January 9, 2014
Introduction
• Although political scientists have examined the behavior of
majority-opinion coalitions on the United States Supreme
Court, not much is known about dissent coalitions.
• In this paper, we explore the process of dissent bargaining and
accommodation.
• Specifically, using material gleaned from the papers of Justice
Lewis Powell, we examine the 1975, 1976, 1980, 1981, 1986,
and 1987 Terms in an effort to understand dissenting behavior.
• We identify the goals and strategies used by the dissent
coalition and explain why justices issue separate, multiple
dissents.
Why Dissent?
• Disagreement with outcome of case –
the norm of acquiescence ended
during the Burger Court.
• Influence future law - Chief Justice
Charles Evans Hughes said that
“Dissents are appeals to the brooding
spirit of the law, to the intelligence of
another day.”
• Strengthen majority opinion - Justice
Ruth Bader Ginsburg noted that
“there is nothing better than an
impressive dissent to lead the author
of the majority opinion to refine and
clarify her initial circulation.”
How Dissents Originate
• Assignment – disagreement at Conference
– Cook (1995) traced the historical development of
dissenting practices and showed how dissent
assignment became institutionalized over time:
1. Voluntarism – acquiesce or individual dissent
2. Collegial consultation – dissenters consult about
opinion(s)
3. Senior responsibility – principle dissent assigned by
senior justice in coalition
• Vote Switch – during majority coalition
formation a former majority or concurring
opinion can become a dissent
•
Bargaining and Accommodation Among
Dissent Coalition
Goals
1.
2.
3.
4.
•
Strategy
1.
2.
3.
4.
•
Attempts to take votes from majority
Critiquing the majority opinion
Strengthening the majority opinion
Consensus for principle dissent
Active bargaining initiated by potential joiners: the conditional join exacting changes in principle dissent via threats to write separately or
defect to majority
Active bargaining initiated by principle dissenter
Preemptive Bargaining
Timing – taking votes from majority, pre-empting separate dissents, endof-term pressure influencing both votes and opinion substance.
Separate Dissents
1.
2.
3.
No consideration of principle dissent; no attempt to bargain
Join principle dissent and issue separate dissent – reinforce, add to, or
contradict principle dissent.
Failed negotiations
Dissent Coalition Goals
1. Attempts to take votes from
majority
2. Critiquing the majority opinion
3. Strengthening the majority
opinion
4. Consensus for principle dissent
Dissent Coalition Goals:
(1) Attempts to Take Votes from Majority
• Perhaps the first goal of the dissenting coalition is to
bolster their ranks by convincing majority coalition
members to defect to the minority which sometimes
results in the minority becoming the majority.
• Principle dissents may be drafted in such a way as to
convince majority coalition members to change their
votes and defect to the minority coalition.
• This is particularly crucial when members of the
majority coalition fail to quickly join a circulated
majority opinion and instead indicate that they at
“not at rest” (meaning their Conference votes were
tentative) and/or will await the dissent…
• For example, in Arkansas Louisiana Gas Co. v. Hall (1981), after
Burger assigned the majority opinion to Marshall and Stevens
was assigned the principle dissent, Powell wrote the Chief: “As
indicated at Conference, I was not at rest in this confusing
case….I would like to be persuaded by what John intends to
write. Accordingly, I will await what he writes, hoping to be able
to affirm” (Powell Papers Box 218).
• As is customary, Powell copied all of the justices on the memo
so that Justice Stevens knew that Powell’s vote could be had.
• But Stevens was not successful in persuading Powell to join his
opinion. Ultimately Powell issued his own dissent after reading
Stevens’ principle dissent.
• Majority coalition members may go further than simply indicating
that they are awaiting the dissent. They may also bargain with the
author of the principle dissent.
• Consider Pembaur v. City of Cincinnati (1986). After Powell circulated
his principle dissent, O’Connor wrote him with questions about the
arguments in his draft.
• Powell responded to her queries and concluded: “I appreciate your
giving me the opportunity to address your concern, and hope that
you will agree with Part I of my dissent. I also would rejoice if you also
joined Part II” (Powell Papers Box 269).
• Ultimately, O’Connor did not defect to the dissenters. However, rather
than join the majority opinion she issued her own opinion concurring
in part and concurring the judgment. She explained to Powell: “I
should have written you before circulating my opinion concurring in
the judgment in this case. I have very mixed feelings about the case
and I finally decided, reluctantly, to adhere to my original conference
vote” (Powell Papers Box 269).
Dissent Coalition Goals:
(2) Critiquing the Majority Opinion
• One goal of a dissent is to critique the majority opinion. Toward that end,
dissent coalition members may suggest changes in a dissenting opinion, not
because they condition their join on them, but because they simply want to
make the strongest possible case against the majority.
• Consider Enmund v. Florida (1982) where O’Connor circulated a draft majority
opinion but could not hold her initial five-justice coalition. Powell wrote her: “It
now appears that your fine opinion will not command a Court….I do have one
suggestion for your consideration. One of the weakest points in Byron’s opinion
is that it will result in a federal, constitutional law of ‘intent.’ You mention this at
page 24 of your opinion. It may be worth emphasizing… (Powell Papers Box 235).
• O’Connor replied: “I am somewhat frustrated and quite concerned that my draft
failed to attract a majority….I will incorporate your concerns in what will now
become a dissent. In this business one must learn to ‘grin and bear it’ (Powell
Papers Box 235).
• After O’Connor circulated her redrafted opinion—now a dissent—Powell wrote
his clerk: “Not a strong reply to BRW’s Court opinion but I’ll join” (Powell Papers
Box 235).
Dissent Coalition Goals: (3)
Dissenter as Advocate - Strengthening the Majority Opinion
• Consider Powell’s discussion with his clerk Phil Jordan concerning their dissent in
Franks v. Bowman (1976). Powell explained to Jordan: “the role of a dissenter is
similar to that of an advocate….where there is room for rational doubt, we
should resolve it strongly in favor of our position” (Powell Papers Box 173).
• After Powell circulated his dissent, Brennan—the majority opinion author—
responded: “I am making a few small revisions in light of Lewis’ most recent
circulation. I must say Lewis seems to have made a full scale retreat from his
original position….Thus our opinions don’t seem to differ to any great extent. I
am making this clear in a new footnote” (Powell Papers Box 173).
• Powell replied—somewhat tongue-in-cheek—“If Bill really thinks there is no
material difference, it would clarify the situation for everyone—and especially for
the lower courts—if Bill were to join my opinion. He would be most welcome. Or,
as an alternate, I cheerfully make my opinion available as a substitute for Part III
and Part IV of his opinion. But in all candor, I view our opinions and positions as
irreconcilable” (Powell Papers Box 173).
• After Brennan’s fourth draft was circulated, Powell noted on the draft: “At least
we have Bill hopping! And he has made a stronger case for his view” (Powell
Papers Box 173).
Dissent Coalition
Goals: (4)
Consensus for
Principle Dissent
• More often than not, justices in the dissent coalition do not attempt
to bargain with the majority or with one another.
• Instead, the principle dissent is assigned, written, and unconditionally
joined by the members of the minority.
• This occurs even when the principle dissent may be problematic to
one extent or another.
• For example, in Lawrence Cantor, dba Selden Drugs Co. v. The Detroit
Edison Co. (1976), Stewart circulated the principle dissent on which
Powell noted: “This is unnecessarily long, discursive + not well
organized. Also tone is a bit polemic. But decision is plainly right. Join”
(Powell Papers Box 178).
Dissent Coalition Strategy
1. Active bargaining initiated by potential joiners:
the conditional join - exacting changes in
principle dissent via threats to write separately
or defect to majority
2. Active bargaining initiated by principle dissenter
3. Preemptive Bargaining during dissent
assignment or via memorandum prior to
principle dissent circulation
4. Timing – taking votes from majority, pre-empting
separate dissents, end-of-term pressure
influencing both votes and opinion substance.
Dissent Coalition
Strategy: (1)
Conditional Joins
• Dissent coalition members may request substantive changes to the principle
dissent via threats to write separately or defect to the majority.
• Consider Monroe v. Standard Oil Co. (1981). Powell was in dissent but was
dissatisfied with a second circulation of Burger’s principle dissent draft.
• Powell clerk Paul Smith took issue with the final sentence and wrote Powell:
“This new sentence seems out of place, especially since the dissent fails to show
why it is true. Moreover, such a consideration is irrelevant to this question of
statutory construction” (Powell Papers Box 224).
• Powell agreed and asked Burger to “omit the last sentence,” enclosed a
newspaper story supporting his “very strongly held view,” and explained that he
did “not wish to associate my name” with the statement (Powell Papers Box
224).
• Burger deleted the sentence and Powell joined his opinion. While such a change
may appear small on its face, Powell’s vote gave Burger’s dissent four votes
instead of three, kept Powell from writing separately, and prevented Powell
from possibly defecting to the majority.
Dissent Coalition Strategy: (2)
Active Bargaining Initiated by Principle Dissenter
• Active bargaining can also be initiated by the principle dissenter.
• For example, in California Coastal Commission v. Granite Rock Co. (1987) Powell
circulated the principle dissent and Scalia chose not to bargain and simply issued
his own separate dissent.
• Powell clerk Ronald Mann wrote his boss: “I recommend that you not join
Justice Scalia’s opinion…..I recommend that you take no action. I note that there
is little in Justice Scalia’s opinion that would preclude him from joining your
dissent. I am disappointed that he did not consider doing so” (Powell Papers Box
279).
• Powell wrote Scalia: “I have now had an opportunity to take a look at your
dissent….I do not think your opinion is necessarily inconsistent with my
dissenting opinion. If there are changes I could make that would enable you to
join my dissent, I would be glad to consider them” (Powell Papers Box 279).
• Ultimately, Scalia stuck to his separate dissent only.
Dissent Coalition
Strategy:
(3) Preemptive
Bargaining
• A less common form of dissent bargaining occurs prior to circulation of the
principle dissent, which we term preemptive bargaining. Preemptive bargaining
is a subtle form of negotiation that takes place among dissent coalition members
soon after the initial Conference vote. Preemptive bargaining can take two forms:
at the dissent assignment stage or via a memorandum prior to the circulation of
the principle dissent.
• An example of the former is Ridgway v. Ridgway (1981). Powell wrote Stevens:
“As you, Bill Rehnquist and I are in dissent in this case, I will try my hand on the
fraud theory that I mentioned at Conference. If I understand the theory you
mentioned, I am afraid it will be difficult to reconcile with our decisions. But, if
you write, you may possibly persuade me” (Powell Papers Box 229).
• Stevens responded: “I will make an effort to persuade you that our prior
decisions do not control this case. I think Tom Clark left the door wide open in his
Wissner opinion” (Powell Papers Box 229).
• Following Powell’s principle dissent circulation, Stevens circulated his own
dissent but was unable to persuade Powell to budge. In the end, only Rehnquist
joined Powell’s principle dissent and Stevens issued his dissent without any joins.
Dissent Coalition Strategy: (4) Timing
• One feature of dissent coalition strategy is timing. Should the principle
dissent circulate before or after the majority opinion?
• Circulating the dissent first might persuade majority coalition members
to defect. For example, in County of Washington, Oregon v. Gunther
(1981), Burger was in the four-justice dissent coalition.
• He wrote Stewart: “Are you willing to take on a dissent in this case? You
recall Byron said his vote to affirm was ‘tentative’. A swift dissent might
‘shake’ the case” (Powell Papers Box 224).
• Stewart replied: “Rather than preparing a ‘swift’ dissent I would prefer to
wait to see what the Court is going to say, and may well end up by joining
the Court opinion” (Powell Papers Box 224).
• Undeterred, Burger turned to Rehnquist: “Since Potter ‘opts out of the
class,’ will you put your hand to it?” (Powell Papers Box 224).
• Rehnquist accepted but his draft did not circulate until six days after the
majority circulation and while he held Stewart’s vote, he was unable to
persuade White to defect.
Separate Dissents
1. No consideration of principle
dissent; no attempt to bargain
2. Join principle dissent and issue
separate dissent – reinforce, add
to, or contradict principle dissent.
3. Failed negotiations
Separate Dissents:
(1) No Attempt to
Bargain
• Also, rather than join a principle dissent or engage in
bargaining, a justice may simply choose to write
separately.
• For example, in Bender v. Williamsport Area School
District (1986), Burger circulated the principle dissent but
Powell neither joined nor attempted to bargain. He noted
at the top of Burger’s draft: “I am not sure Douglas’
opinion in Zorach is relevant. I might write separately +
say that I agree there is standing + that Widmar controls”
(Powell Papers Box 268). Powell did write separately.
Separate Dissents: (2)
Separate Dissents while Also Joining Principle or Other Dissents
• Even when the principle dissent incorporates the arguments of another
justice in the minority coalition, that justice may both join the principle
dissent and still issue a separate dissenting opinion.
• These separate dissents can either seek to reinforce points made in the
principle dissent, offer new arguments, or contradict them.
• Jacksonville Bulk Terminals v. Longshoremen (1982) is an example of the
former. After Burger circulated his principle dissent, Powell circulated a
separate brief dissent. Burger read it, incorporated Powell’s arguments,
and recirculated. Powell wrote his clerk: “I have now read the Chief’s
revised dissent in which he has added a new Part II. As you say, he largely
plagiarizes my little opinion. I am still inclined, however, to stay with it”
(Powell Papers Box 229).
• Powell joined Burger and still wrote separately.
Separate Dissents:
(3) Failed
Negotiations
• Of course a principle dissenter may refuse to incorporate the changes
suggested by a member of the dissent coalition. More often than not this
results in the justice’s refusal to join and the issuing of a separate dissent.
• Consider California Coastal Commission v. Granite Rock Co. (1987) where
Powell and Scalia worked to reconcile the grounds for their separate
dissents.
• Scalia wrote Powell: “Much as I would like to merge our dissents, I am
afraid that I do not agree with the fundamental proposition [you
make]….I cannot imagine any suggested revision of your opinion that
would overcome that difficulty. Would it be possible for you to
reconsider the question [raised by]…my opinion….Whether we can get
together or not, I appreciate your effort at trying. I will be happy to talk
the matter over if you think that would be useful” (Powell Papers Box
279).
• In the end, the positions were irreconcilable and each issued their own
dissent without joining the others’.
Conclusion
• As with majority coalitions, dissenting justices
employ strategies to achieve various goals.
• Minorities seek to achieve consensus when
possible.
• Separate dissents are similar concurrences in that
they can arise from failed consensus; a desire to
reinforce, add-to, or counter another dissent; or
simply due to individual expression.
• Future plans: supplement with papers from other
justices and add quantitative analyses.