“I and other people had always thought that Harlan’s dissent in Lochner was the better dissent because it dealt with the majority’s arguments,” Urofsky said. “But Holmes’s dissent took us in a whole new direction. He wrote not just ‘You’re wrong on this,’ but ‘Here’s the way you should go.’”
Dissents, great or otherwise, remained relatively rare until the New Deal era. “What surprised me was that until the 1930s, 90 percent of all opinions came down unanimously,” he told me. For comparison, the last two terms of the Roberts Court saw unanimity in 41 percent (2014-2015) and 66 percent (2013-2014) of cases. The rise of the dissent, he says, stemmed from the passage of the so-called “Judges’ Bill” in 1925. In the bill, Congress sharply cut back the number of cases the Court was required to hear. Instead, it now had leeway to pick and choose. “The act succeeded … in transforming the Court from a forum that corrected errors in ordinary private litigation—such as personal-injury suits—into a constitutional tribunal that decided policy issues of national importance,” Urofsky writes in the book. Not only did that change raise the stakes in individual cases, it also left the justices more time to brood—and bicker—about the cases they did hear.
Who is the greatest modern dissenter? “Ginsburg has written some very important dissents,” he said.
That answer may surprise the generation of law students who have found amusement, vindication, or fury in excerpted dissents by the late Antonin Scalia. In cases involving the death penalty, the rights of gays and lesbians, abortion, and other high-profile issues, Scalia hurled brickbats at his colleagues in the majority, introducing into the United States Reports words like “argle-bargle” and “jiggery-pokery,” and ridiculing Kennedy’s gay-marriage opinion as “the mystical aphorisms of the fortune cookie,” which he would not join even with “my head in a bag.”
Those seem to many of today’s lawyers like the models for a “great dissent.” But for all their memorable snark, Urofsky says, most of Scalia’s high-profile dissents are likely to fade quickly out of the “constitutional dialogue.” He compared Scalia to Justice Felix Frankfurter—a stinging comparison for a serious Court watcher.
Frankfurter’s dissents were long and passionate. There was little of Scalia’s personal abuse, but a great deal of emotion about how deeply Frankfurter felt that he was right. In his dissent in West Virginia State Board of Education v. Barnette, for example, Frankfurter, who was Jewish, wrote, “One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution.”* Nonetheless, with a great show of inner drama, he insisted the Court was dreadfully wrong to accept the religious-freedom claim of a group of Jehovah’s Witness children who were being forced to salute the American flag and that his position rejecting minority rights was the only proper one. The majority opinion, by Justice Robert H. Jackson, is now a foundation of modern religious-freedom and free-speech law; few recall Frankfurter’s public anguish.
“He and Scalia had a common type of dissent—the whine, ‘Why don’t you people listen to me? I know more than you do,’” Urofsky said. If history is a guide, that will not age well. “Who reads Felix Frankfurter’s dissents anymore?”
* This article originally stated that Frankfurter’s dissent was in a case concerning the Minersville School District in Pennsylvania. We regret the error.