Eminent Domain

The young lady sitting next to me in Crim Pro said that to me tonight before class. Our row was on call for Wheat v United States and she decided to skip the dissent by Justice Marshall (which is usually a good practice, unless you're on call). Being the nice guy that I am, I gave her the 90 second version of the dissent.

That little episode made this post by Prof. Althouse jump out at me. Quoted are remarks by Justice Alito concerning those pesky dissenting opinions. Prof. Althouse then throws out some questions about dissents...

So, dissenting opinions: vanity or dishonesty? I think it's somewhere in between. It's not really dishonest to sign on even though you disagree. Once a majority of the Justices have one opinion, it will be the precedent in future cases, and you'll cite it and follow it then. What difference does it make if you start following it before it issues? Should you always do that then? Should we agree with the unnamed Third Circuit judge who said that dissenting opinions were nothing but vanity? I'd say that is going too far, but reading dissenting opinions, you can encounter a lot of unseemly preening.

She also then quotes part of Justice Brennan's later views on dissents...

"At the heart of that function is the critical recognition that vigorous debate improves the final product by forcing the prevailing side to deal with the hardest questions urged by the losing side."

Personally, I like dissents. First, they are usually much more fun to read, especially with the right judge or Justice at the pen. Second, they do also give you an idea of where the courts may go with the law. Read a dissent and then count the votes. In time, those Justices may pick up a colleague or two and turn that dissent into a majority. They also plant the seeds of dramatic future change and rethinking of the law. Those of us with an interest in First Amendment jurisprudence can see how dissents, like those of Holmes and Brandeis, can eventually become not only majority views but almost unquestionable majority views. Things change, and dissents can give us a road map for that change.