On Judicial dissent

“A dissent in a Court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day.”- CHARLES EVANS HUGHES in 1928.

ALAN BARTH, a distinguished senior editorial writer on law and civil liberties with the Washington Post for almost 30 years, in his treatise has endeavoured to show how the dissenting judges have often been PROPHETS WITH HONOR, “men who foresee the future before events make it manifest to their contemporaries.”

Barth has in his treatise brilliantly portrayed how in decisions, involving the individual rights and liberties of the citizens, a dissenting judge has sat down with brilliant force of logic and expression, a contradictory judgement, which was proved years later to be the philosophical basis for a reversal by the majority of the Court.

John Marshall Harlan, dissenting in Plessy Vs. Ferguson 1896, had contended that the American Constitution was “Colour Blind”. Harlan, in his dissent had anticipated by 58 years hence. Finally, the judgement of 1896 was unanimously upturned by the Warren Court by overturning the doctrine of “Separate but equal”.

Similarly in Olmstead Vs. United States, 1928, Louis D Brandeis, dissenting, argued in the famous Wiretapping Case, that the makers of the American Constitution had “Conferred the right to be left alone….the right most valued by civilised men”.

Harlan Fiske Stone’s dissent in Minersville School District Vs. Gobitis, in 1940, in the famous “Flag Salute” case was validated only 3 years later, in another Wartime patriotism case, by a majority decision that “Authority is here to be controlled by public opinion, not public opinion by authority”.

In the 1942, Betts Vs. Brady case Hugo L Black, dissenting by holding that “No man shall be deprived of Counsel merely because of his poverty any other practice seems to me to defeat the promise of our democratic society,” anticipated by 20 years the landmark GIDEON decision.

Justice Black’s dissent in Colegrove Vs. Green, 1946, against the majority’s denial of equal representation, was subsequently reversed in the historic Baker Vs. Carr, “one man, one vote” decision.

In 1951, in the Dennis Vs. United States case, William Q Douglas dissented against the conviction of 11 American Communist Party leaders for advocating the violent overthrow of the government, with an exposition of the 1st Amendment doctrine, “Free speech is the rule, not the exception the restraint to be constitutional, must be based on more than fear.” The dissent was upheld in the 1957 Yates Case that restored Oliver Wendell Holmes’s original concept of “clear and present danger”.

Opinions written for the Court are supposed to define, as clearly and concisely a possible, the meaning and application of law in the context of a particular case. Dissenting as also concurring opinions, on the other hand, are meant to convey the individual views of the justices who write them, and so, on occasion, they convey also some of the passion with which those views are charged. Freed from the constraints entailed in trying to express the sense of a majority, they embody, at times, passages of great force, eloquence, and order. Now and then they give rise to the level of literature, offering some of the most pungent polemical writing ever produced, as in the case of Justice VK Krishna lyer.

Dissents give judges an opportunity to look beyond the circumstances of a particular case and discuss its larger implications in terms of general principles and its impact on the future. That is why they are at their best, prophetic.

Judicial dissent is, at its best, a form of prophecy in the Biblical sense of the term. It reflects, at least on occasion, not only a protest against what the dissenter deems error or injustice, but an Isaiah like warning of unhappy consequences.

Like a sear, the dissenter sometimes peers into the future. He will be accounted wise or foolish as the unfolding of events proves him right or wrong. A dissenting judge always hopes that a later day decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.

A dissent is not an attempt to win over One’s colleagues. It deals with a die already cast, an issue already determined. The most that the dissenter can hope to do, so far as the present is concerned, is to persuade contemporaries off the court that his associates were mistaken, to mobilise public opinion against them, as it were a dubious satisfaction since the Court is not supposed, in any case, to be responsive to popular pressure. A judicial dissent, then, is basically a plea to posterity.

Dissenting opinions enable a judge to express his individuality. He is not under compulsion of speaking for the Court and thus of securing concurrence of a majority. A dissenting judgement momentarily lasts a judge off the judicial leash. It affords an outlet for individuality, independence, idiosyncrasy, a divergence from accepted, official or conventional wisdom.

Rhetorical flourishes, emotional outbursts may be gratifying to a writer and yet repelling to a colleague, especially a colleague who is asked to subscribe to what is written as an expression of his own views. Majority opinions, therefore tend to be bare-bones versions of a consensus, prosaically defining and expounding the law.

The trouble with a dissenting opinion, of course, is that it casts a certain shadow on the majority opinion, which is, after all, at least for the time being, the authoritative view of the issue that the Court has considered. A dissent makes it plain that one or more jurists, as eminent as those who constitute a majority of the Court, think that the matter has been wrongly decided.

There are those who think it desirable that dissenting should not be disclosed as they detract from the force law.

When unanimity can be obtained without sacrifice of conviction, it strongly commends the decision to public confidence. But unanimity which is merely formal, which is recorded at the expense of strong, conflicting views, is not desirable in a court of last resort, whatever may be the effect on public opinion at the time. This is so because what must ultimately sustain the court in public confidence is the character and independence of the judges. They are not there simply to decide but to decide them as they think they should be decided. Independence does not mean cantankerousness, and a judge may be a strong judge without being an impossible person. Nothing is more distressing on any bench than the exhibition of a captious, impatient, querulous spirit.

Although dissent opinions are generally prompted by strong feelings and often connote a condemnation of the judgement of colleagues, there is a tradition in the Court that they ought to be stated in terms that indicate respect, and even defence, for the majority holding the different view.

It would be romantic to suppose that dissenting opinions always, or very often, embody great wisdom or repute error on the part of the majority. All too frequently, a dissent expresses no more than an aberrant view arising out of an individual justice's prejudices.. of what Justice Hughes called “Cantankerousness.”

Sometimes it has served to stir the sensibilities and prod the consciences of the country, eventually leading the Court which is, in a true sense, the custodian of the country’s conscience. “To correct the error into which the dissenting judge believes the court to have been betrayed.”

The Supreme Court, empowered, as it has been to invalidate acts of legislation and executive branches of the state and national governments, has at once mirrored and at the same time powerfully shaped the character of the country. Although it has, in considerable measure, been insulated from political influences by the life tenure of its members and by the aura of Olympian detachment surrounding it, the Court is not impervious to social developments. It has responded, in recent years, to changing popular attitudes.

The Supreme Court does not easily acknowledge error or overturn its own past judgments. Stare Decisis, the authority of the past, has always and necessarily been a vital principle of the Court’s conduct. The Court bows to the lessons of experience and the force of better reasoning. The Court is, besides, and above all else, an institution.. with all that the term implies regarding roots and a respect for tradition.

What it comes down to, then, is a recognition that precedent is a valuable stabilizer, not lightly to be overridden, yet not slavishly to be obeyed.

Justices of the Supreme Court are rarely TITANS, they are mortal men, endowed usually with more than ordinary intellectual powers and with the exceptional richness of learning and with experience, but nevertheless subject like other mortal men to vagaries and failures of understanding. And so, from time to time, the Court confesses error and corrects itself, overturning its own past judgement, not capriciously on the basis of changing personal preferences but rationally, in the light of logic and experience.

The process of self-correction has been repeated again and again when experience overrode a logic demonstrable by a totally new trend of thinking.

It is the time the Courts respond to changing attitudes.