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The Supreme Court Dissents Washington University Law Review Volume 28 Issue 4 January 1943 The Supreme Court Dissents Jacob M. Lashly St. Louis Bar Association Paul B. Rava Rava, Hyndman & Rutherford Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Part of the Courts Commons Recommended Citation Jacob M. Lashly and Paul B. Rava, The Supreme Court Dissents, 28 WASH. U. L. Q. 191 (1943). Available at: https://openscholarship.wustl.edu/law_lawreview/vol28/iss4/3 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. WASHINGTON UNIVERSITY LAW QUARTERLY Volume XXVIII SUMMER ISSUE, 1943 Number 4 THE SUPREME COURT DISSENTS JACOB M. LASHLYi AND PAUL B. RAVAtt The use of dissenting opinions is deeply imbedded in the his- tory of the Supreme Court of the United States. Georgia v. Brailsford, the first case in which opinions were reported, wit- nessed the splitting of the court in a 3 to 2 decision. Broadly speaking, it was only during the times of the dominating per- sonality of Marshall that Supreme Court Justices refrained from dissents. The importance of the role played by dissenting opinions in the development of American jurisprudence cannot easily be ap- praised. The dissent of Justice Iredell in Chisholm v. Georgia; later became part of the supreme law of the land in the Eleventh Amendment to the Federal Constitution. A long skies of dissenting opinions at different times even- tually has driven the Court to reverse its policy, or has seemed to do so. Thus Field's dissent in Rogers v. Burlingtonw became 4 law in Brenham v. German American Bank. Miller's dissent in the legal tender case led to the overruling of Hepburn v. Griswolds in Knox v. Lee and Parker v. Davis.6 Field's persistent dissents intended to uphold and protect a t Practicing lawyer. Member of St. Louis, Missouri, Bar. President of American Bar Association, 1940-1941. Part time lecturer at Washington University. tt LL.B., Washington University; J.U.D., Padua University; formerly lecturer, Padua University and Michigan University. Lecturer at Washing- ton University. 1. State of Georgia v. Brailsford (1792) 2 Dall. 402. 1 L. Ed. 433. 2. Chisholm Ex'r. v. Georgia (1793) 2 Dall. 419. 1 L. Ed. 440. 8. (U. S. 1866) 3 Wall. 654. 4. (1892) 144 U. S. 173. 6. (U. S. 1870) 8 Wall. 603. 6. (U. S. 1871) 12 Wall. 457. Washington University Open Scholarship 192 WASHINGTON UNIVERSITY LAW QUARTERLY [Vol. 28 conservative policy find an interesting counterpart in the equally famous and equally persistent dissents of Holmes, Brandeis and Cardozo, who advocated a liberal policy for the court. These examples appear to make a case in favor of dissenting opinions. In this light it seems surprising that so great a dis- senter as Justice Holmes should have stated that dissenting opinions are "useless and undesirable."7 Excessive indulgence by judges in dissents might well detract from the prestige of decisions of the courts and lead toward a weakening of confi- dence in the stability of the law. The great merit of the common law has been the balance between the two opposite needs of the legal system: stability in the law, and evolution of legal prin- ciples to conform to changing economic and social conditions. Paraphrasing Chief Justice Stone9 as to the latter, one could say that Judges should not cast a dynamic society into a rigid mold. Chief Justice Hughes once said :'0 "A dissent in a court of last resort is an appeal to the brood- ing spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed."'1 In the shifting political and economic bases of the American Republic, courts change their theories and their interpretations according to changes in the training and thinking of the judges through whom they must speak. Obviously the pressures of public opinion influence the minds of judges in the direction of 7. This quotation is due to Evans, The Dissenting Opinion-Its Use and Abuse (1938) 3 Mo. L. Rev. 120, 122. 8. This is one of the common objections raised against the use of dis- senting opinions. See e. g., Justice White, dissenting in Pollock v. Farmers' Loan & Trust Co. (1895) 157 U. S. 429, 608: "The only purpose which an elaborate dissent can accomplish, if any, is to weaken the effect of the opinion of the majority, and thus engender want of confidence in the con- Court of the United States (1928) p. 68. 9. Stone, R. J., Appraisal of Justice Van Devanter (1942) A.B.A.J., p. 459. 10. Hughes, Columbia University Lectures, published in the Supreme Court of the United States (1928), p. 68. 11. See also Chief Justice Stone, speaking to the 12th Annual Judicial Conference for the Fourth Circuit, at Asheville, North Carolina, on June 19, 1942, 13 Mo. B. J., p. 98: "Although in my time there have been some opinions of the Court which were originally written as dissents, the dis- senting opinion is likely to be without any discernable influence in the case in which it is written. Its real influence, if it ever has any, comes later, often in shaping and sometimes in altering the course of the law." https://openscholarship.wustl.edu/law_lawreview/vol28/iss4/3 1948] THE SUPREME COURT DISSENTS policies generally accepted by others, and it is possible that these processes are more often responsible for fundamental shifts in policy by the Supreme Court than is the leading of minority views, however strongly expressed and oft-repeated. But there is a certain glamour in the role popularly ascribed to dissenting opinions in American jurisprudence. It may have been expected that "the important shift in consti- a reconstruction in the membership of tutional doctrine due to 12 the court" noted by Mr. Justice Frankfurter in the Graves case in 1938 would have been followed by a greater unanimity on the court, and result in fewer dissents. Any such expectation was not to be realized. Notwithstanding the presence on the court of seven appointees by the same President, the October, 1941 Term witnessed-as the Chief Justice himself noticedl--more dissents than during any recent years. For purposes of comparison, the following table has been prepared to show the respective number of dis- sents and five-to-four decisions in the 1941, 1931 and 1921 October Terms of the court. Percent of the Dissenting 5to4 Term Opinions' 4 Dissents' 5 Dissents Votes Decisions 1941 152 58 38 159 15 1981 151 26 16 54 2 1921 173 37 21 83 2 Although clearly significant as to the composite work and trends of thought of the court, this table cannot have more than an indicative value for any other purpose. The number of dis- 12. Graves v. New York (1939) 306 U. S. 466. In truth the 'shift' had come before the 'reconstruction'. The restrictions on state legislative power had been removed in West Coast Hotel Co. -v. Parrish (1937) 300 U. S. 879, while in similar manner federal power had been released in Labor Board v. Jones & Laughlin 301 U. S. 1; Labor Board v. Fruehauf Co. (1987) 801 U. S. 49; Labor Board v. Clothing Co. (1937) 301 U. S. 58; Associated Press v. Labor Board (1937) 301 U. S. 103. 18. Chief Justice Stone, address made on June 19, 1942, at the 12th Annual Judicial Conference for the Fourth Circuit, reprinted in 1942, 13 Mo. B. J., p. 98: "There have been quite a number of five to four decisions and a goodly number of dissents-more in fact than during any recent years, but not as many, I believe, as at some other periods in the court's history." 14. Memoranda opinions have not been included in this computation. When one opinion disposed of more than one case, one opinion only has been reckoned. 15. In the "dissents" dissenting opinions have been included as well as mere registrations of dissent, without any indication of the grounds upon which the dissent rests. Washington University Open Scholarship 194 WASHINGTON UNIVERSITY LAW QUARTERLY [Vol. 29 sents, by itself, does prove that the court does not indulge in one-man decisions. Where the writer of an opinion is faithfully followed by his colleagues, there is not much incentive for dis- senting opinions. Since, on the other hand, the number of dis- sents is some evidence of the intellectual vividness and of the individual application of the Justices to the cases submitted to them, a rather detailed analysis is necessary in order to evaluate the dissents. • The preliminary purpose of showing the authorship of the dis- senting and majority opinions is served by the following table: DISSENTS IN THE 1941 OCTOBER TERM Unani- Dissent- Dissent Total mous Majority ing Without Separate Dissenting Justices Opinions Opinions Opinions Opinions Dissents Votes Black 15 3 10 0 0 21 Byrnes 10 6 0 0 0 12 Douglas 22 5 8 0 1 28 Frankfurter 6 12 8 0 1 16 Jackson 7 5 3 2 0 10 Murphy 10 4 3 0 1 18 Reed 3 9 5 0 1 13 Roberts 6 9 4 2 0 18 Stone 16 5 6 0 1 21 No author 6 1 Totals 95 58 53 5 5 157 In order to carry a step further the comparison with the 1931 and 1921 October Terms, the two following tables have been pre- pared after the pattern of the table for the 1941 term: DISSENTS IN THE 1931 OCTOBER TERM Dissents Total Dissenting Separate Without Dissenting Justices Opinions Dissents Opinions Votes Brandeis 2 1 0 13 Butler 3 0 0 4 Cardozo 2 0 0 4 Holmes 1 0 0 5 McReynolds 3 0 3 6 Roberts 0 0 0 2 Stone 6 0 0 13 Sutherland 2 0 0 3 Van Devanter 1 0 0 4 No author 1 0 2 0 Totals 21 1 5 54 https://openscholarship.wustl.edu/law_lawreview/vol28/iss4/3 THE SUPREME COURT DISSENTS DISSENTS IN THE 1921 OCTOBER TERM Dissents Total Dissenting Separate Without Dissenting Justices Opinions Dissents Opinions Votes Brandeis 4 2 0 13 Clarke 4 0 1 16 Day 0 0 0 4 Holmes 6 0 0 9 McKenne 4 0 1 11 Pitney 0 1 0 3 McReynolds 3 1 2 13 Taft 1 0 0 6 Van Devanter 0 0 1 8 No author 0 0 10 0 Totals 22 4 15 83 It is a coincidence that the Chief Justice should have written the same number of dissenting opinions in the 1941 Term that he wrote as Justice in the 1931 Term.
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