Table of Contents
Introduction: Why Dissent? xi
"The legislature is entitled to all the deference that is due the judiciary.": Marbury v. Madison, 1803 John Bannister Gibson 1
"Experience should teach us wisdom.": McCulloch v. Maryland, 1819 President Andrew Jackson 17
"Among those for whom and whose posterity the Constitution was ordained and established.": Dred Scott v. Sanford, 1857 Justice Benjamin R. Curtis 31
"To enable the black race to take the rank of mere citizens.": The Civil Rights Cases, 1883 Justice John Marshall Harlan 45
"There is no caste here.": Plessy v. Ferguson, 1896 Justice John Marshall Harlan 69
"Room for debate and for an honest difference of opinion.": Lochner v. New York, 1905 Justice John Marshall Harlan Justice Oliver Wendell Holmes 81
"Men feared witches and burned women.": Whitney v. California, 1927 Justice Louis D. Brandeis 93
"Almost anything-marriage, birth, death-may in some fashion affect commerce.": National Labor Relations Board v. Jones & Laughlin Steel Corp., 1937 Justice James McReynolds 101
"The ugly abyss of racism.": Korematsu v. United States, 1944 Justice Frank Murphy Justice Robert H. Jackson 113
"Refrain from invidious discriminations.": Goesaert v. Cleary,1948 Justice Wiley Rutledge 127
"Our decision does not end but begins the struggle over segregation.": Brown v. Board of Education, 1954 Justice Robert H. Jackson 133
"To attribute, however flatteringly, omnicompetence to judges.": Baker v. Carr, 1962 Justice Felix Frankfurter Justice John Marshall Harlan 151
"A sterile metaphor which by its very nature may distort rather than illumine the problems.": Abington School District v. Schempp, 1963 Justice Potter Stewart 167
"I get nowhere in this case by talk about a constitutional 'right of privacy.'": Griswold v. Connecticut, 1965 Justice Hugo L. Black Justice Potter Stewart 179
"That is what this suit is about. Power.": Morrison v. Olson, 1988 Justice Antonin Scalia 191
"Do not believe it.": Lawrence v. Texas, 2003 Justice Antonin Scalia 211
Conclusion 221
Sources and Additional Readings 225
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I Dissent
Great Opposing Opinions in Landmark Supreme Court Cases
BEACON PRESS
Copyright © 2008 Mark Tushnet
All right reserved. ISBN: 978-0-8070-0036-6
Chapter One "The legislature is entitled to all the deference that is due the judiciary."
Marbury v. Madison, 1803
January 1801: Thomas Jefferson's Democratic Party has just won a massive victory in the elections held in November 1800, taking over the presidency and control of both houses of Congress from John Adams and the Federalist Party. But, because of the extended transition period between the election and the new government taking office, the Federalists still had a chance to hold on to some power. They could not do anything about the legislative or executive branches, but the courts were another matter.
Adams and his Federalists decided to pack the courts with their political allies. Sensible proposals for judicial reform had been rattling around for a while. The Federalists decided to implement them. One effect was to give them a chance to appoint a large number of new judges.
The judicial reform legislation created two classes of new judges. The more important ones were lifetime appointments to the major federal courts. The others were minor judicial officials in the District of Columbia. Adams moved quickly to name the judges, and the Senate to confirm them. Then, unfortunately for the Federalists, Secretary of State John Marshall, soon to take his seat as chief justice of the Supreme Court, made a mistake: after President Adams signed the "commissions," the official documents stating that the new judges were indeed entitled to their positions, Marshall let some of them sit on his desk. Some were still sitting there when Thomas Jefferson took office as president.
Jefferson and his party were determined to undo the Federalists' initiatives. They repealed the statute creating the important new judges and tried to insulate their action from review by what they expected to be a hostile Supreme Court by directing that the Court not meet as scheduled in 1801 or 1802. And Jefferson refused to deliver the remaining commissions, including one to William Marbury.
Marbury wanted his office-or at least he wanted to create a political hassle for Jefferson. He filed a claim in the Supreme Court seeking an order directing that James Madison, the new secretary of state, deliver his commission. John Marshall and his Supreme Court colleagues faced a dilemma. They could chastise Jefferson for his "lawless" action in withholding the commission and direct him to give it to Marbury, and they might gain some political points from Federalists for doing so, but Jefferson would almost certainly have ignored their order. Or, they could fold their tents and acknowledge their weak political position by letting Jefferson get away with what Federalists feared would be the first of many dictatorial actions.
Marshall figured out a better course. In his opinion for Marbury v. Madison, Marshall spent a great deal of space explaining why Marbury had a legal right to his commission, but then explained why the Supreme Court could not order Jefferson to give it to him in this case. Marbury had filed his claim in the Supreme Court without first attempting to get a lower court to issue an order to Jefferson or Madison. Marshall asked whether there was some statute that gave the Supreme Court the power to issue the order in such an "original" action. He then found such a statute, although scholars ever since have contended with some force that Marshall distorted the statute's language to find the authorization there. Finally, at the very end, the opinion took a sharp turn. Marshall asked whether this statute was consistent with the Constitution. Again developing a reading of the Constitution's terms that few since have found compelling, Marshall found the statute inconsistent with the Constitution. He said that Marbury's legal rights had been violated, but he decided that Marbury couldn't get a remedy from the Supreme Court.
Marshall's final move was the one of the most enduring significance. Faced with a statute that-as interpreted-violated the Constitution as interpreted, what should the courts do? Marshall said, Ignore the statute. That is, Marshall held that the courts had the duty to refuse to enforce a statute they found unconstitutional.
Jefferson was outraged at the early parts of the opinion, which essentially called him a lawbreaker, but because Marshall had not ordered Jefferson to deliver the commission there was nothing Jefferson could do about it. And when the Court did have to face up to the Federalist challenge to its authority, it gave in and upheld what the Federalists had done. Marshall, it seems, calculated that in the long run the courts would become a powerful institution of government if they declined to confront Jefferson directly, but asserted that they had the power to do so in an appropriate case.
The power of judicial review was, in the abstract, not terribly controversial. For the past generation or more, American constitutionalists had assumed that courts did have the power to ignore laws they found inconsistent with the Constitution, although the precise scope of the power was a matter of some minor dispute. Nor was anyone seriously bothered by Marshall's use of the power in Marbury v. Madison to invalidate an unimportant, technical statute. But some of Marshall's arguments for judicial review were open to serious question. He said that judges took an oath to support the Constitution, and they could hardly be asked to violate that oath by enforcing an unconstitutional statute. He bolstered that argument by posing some hypotheticals. One was this: the Constitution says that a person can be convicted of treason only if he confesses in open court or if there are two witnesses to the defendant's treasonous actions. Suppose Congress passes a statute saying that a person can be convicted of treason based on the testimony of only one witness. Surely the courts could not send a person to his death after a trial in which only one witness testified as to the treasonous actions.
The problem with Marshall's arguments was that they assumed that everyone knew when a statute violated the Constitution. The treason example was clear because both the imagined statute and the actual constitutional provision were perfectly clear. What, though, of a constitutional provision that was less clear? Members of Congress also took an oath to support the Constitution. When they enact a statute that would be constitutional if the Constitution is read one way and unconstitutional if read differently, shouldn't the courts assume that the members of Congress were conscientious about their oaths and believed that the statute was consistent with the Constitution? Should courts assume that members of Congress believed that the first way was the right interpretation of the Constitution? And, if the courts made that assumption, why should it matter that the judges acting on their own would have interpreted the Constitution differently? Marshall's opinion provided no answer to that question.
Marbury v. Madison was a unanimous decision by the U.S. Supreme Court. Two decades later, in Eakin v. Raub (1825), Justice John Gibson of the Pennsylvania Supreme Court "dissented" from its holding. Justice Gibson's colleagues held unconstitutional a state statute that extended a statute of limitations, thereby-according to the majority-impermissibly allowing a plaintiff to revive a "dead" claim. Justice Gibson dissented, and took the opportunity to explain why the courts should not have the power to invalidate legislation.
* * *
Gibson, J., dissenting....
[I]n questions of this sort, precedents ought to go for absolutely nothing. The constitution is a collection of fundamental laws, not to be departed from in practice nor altered by judicial decision....
The constitution and the right of the legislature to pass the act, may be in collision. But is that a legitimate subject for judicial determination? If it be, the judiciary must be a peculiar organ, to revise the proceedings of the legislature, and to correct its mistakes; and in what part of the constitution are we to look for this proud pre-eminence? Viewing the matter in the opposite direction, what would be thought of an act of assembly in which it should be declared that the Supreme Court had, in a particular case, put a wrong construction on the constitution of the United States, and that the judgment should therefore be reversed? It would doubtless be thought a usurpation of judicial power. But it is by no means clear, that to declare a law void which has been enacted according to the forms prescribed in the constitution, is not a usurpation of legislative power.... It is the business of the judiciary to interpret the laws, not scan the authority of the lawgiver; and without the latter, it cannot take cognizance of a collision between a law and the constitution. So that to affirm that the judiciary has a right to judge of the existence of such collision is to take for granted the very thing to be proved....
But it has been said to be emphatically the business of the judiciary, to ascertain and pronounce what the law is; and that this necessarily involves a consideration of the constitution. It does so: but how far? If the judiciary will inquire into any thing beside the form of enactment, where shall it stop? There must be some point of limitation to such an inquiry; for no one will pretend, that a judge would be justifiable in calling for the election returns, or scrutinizing the qualifications of those who composed the legislature.
... [L]et it be supposed that the power to declare a law unconstitutional has been exercised. What is to be done? The legislature must acquiesce, although it may think the construction of the judiciary wrong. But why must it acquiesce? Only because it is bound to pay that respect to every other organ of the government, which it has a right to exact from each of them in turn. This is the argument. But it will not be pretended, that the legislature has not at least an equal right with the judiciary to put a construction on the constitution; nor that either of them is infallible; nor that either ought to be required to surrender its judgment to the other. Suppose, then, they differ in opinion as to the constitutionality of a particular law; if the organ whose business it first is to decide on the subject, is not to have its judgment treated with respect, what shall prevent it from securing the preponderance of its opinion by the strong arm of power? It is in vain to say, the legislature would be the aggressor in this; and that no argument in favour of its authority can be drawn from an abuse of its power. Granting this, yet it is fair to infer, that the framers of the constitution never intended to force the judges either to become martyrs or to flinch from their duty; or to interpose a check that would produce no other effect than an intestine war. Such things have occurred in other states, and would necessarily occur in this, under circumstances of strong excitement in the popular branch. The judges would be legislated out of office, if the majority requisite to a direct removal by impeachment, or the legislative address, could not be had; and this check, instead of producing the salutary effect expected from it, would rend the government in pieces. But suppose that a struggle would not produce consequences so disastrous, still the soundness of any construction which would bring one organ of the government into collision with another, is to be more than suspected; for where collision occurs, it is evident the machine is working in a way the framers of it did not intend. But what I want more immediately to press on the attention, is, the necessity of yielding to the acts of the legislature the same respect that is claimed for the acts of the judiciary. Repugnance to the constitution is not always self evident; for questions involving the consideration of its existence, require for their solution the most vigorous exertion of the higher faculties of the mind, and conflicts will be inevitable, if any branch is to apply the constitution after its own fashion to the acts of all the others. I take it, then, the legislature is entitled to all the deference that is due to the judiciary; that its acts are in no case to be treated as ipso facto void, except where they would produce a revolution in the government; and that, to avoid them, requires the act of some tribunal competent under the constitution, (if any such there be,) to pass on their validity. Ali that remains, therefore, is to inquire whether the judiciary or the people are that tribunal.
Now, as the judiciary is not expressly constituted for that purpose, it must derive whatever authority of the sort it may possess, from the reasonableness and fitness of the thing. But, in theory, all the organs of the government are of equal capacity; or, if not equal, each must be supposed to have superior capacity only for those things which peculiarly belong to it; and, as legislation peculiarly involves the consideration of those limitations which are put on the law-making power, and the interpretation of the laws when made, involves only the construction of the laws themselves, it follows that the construction of the constitution in this particular belongs to the legislature, which ought therefore to be taken to have superior capacity to judge of the constitutionality of its own acts. But suppose all to be of equal capacity in every respect, why should one exercise a controlling power over the rest? That the judiciary is of superior rank, has never been pretended, although it has been said to be co-ordinate. It is not easy, however, to comprehend how the power which gives law to all the rest, can be of no more than equal rank with one which receives it, and is answerable to the former for the observance of its statutes....
The power is said to be restricted to cases that are free from doubt or difficulty. But the abstract existence of a power cannot depend on the clearness or obscurity of the case in which it is to be exercised; for that is a consideration that cannot present itself, before the question of the existence of the power shall have been determined; and, if its existence be conceded, no considerations of policy arising from the obscurity of the particular case, ought to influence the exercise of it....
But the judges are sworn to support the constitution, and are they not bound by it as the law of the land? In some respects they are. In the very few cases in which the judiciary, and not the legislature, is the immediate organ to execute its provisions, they are bound by it in preference to any act of assembly to the contrary. In such cases, the constitution is a rule to the courts. But what I have in view in this inquiry, is the supposed right of the judiciary, to interfere, in cases where the constitution is to be carried into effect through the instrumentality of the legislature, and where that organ must necessarily first decide on the constitutionality of its own act. The oath to support the constitution is not peculiar to the judges, but is taken indiscriminately by every officer of the government, and is designed rather as a test of the political principles of the man, than to bind the officer in the discharge of his duty: otherwise it were difficult to determine what operation it is to have in the case of a recorder of deeds, for instance, who, in the execution of his office, has nothing to do with the constitution. But granting it to relate to the official conduct of the judge, as well as every other officer, and not to his political principles, still it must be understood in reference to supporting the constitution, only as far as that may be involved in his official duty; and, consequently, if his official duty does not comprehend an inquiry into the authority of the legislature, neither does his oath....
But do not the judges do a positive act in violation of the constitution, when they give effect to an unconstitutional law? Not if the law has been passed according to the forms established in the constitution. The fallacy of the question is, in supposing that the judiciary adopts the acts of the legislature as its own; whereas the enactment of a law and the interpretation of it are not concurrent acts, and as the judiciary is not required to concur in the enactment, neither is it in the breach of the constitution which may be the consequence of the enactment. The fault is imputable to the legislature, and on it the responsibility exclusively rests. In this respect, the judges are in the predicament of jurors who are bound to serve in capital cases, although unable, under any circumstances, to reconcile it to their duty to deprive a human being of life. To one of these, who applied to be discharged from the panel, I once heard it remarked, by an eminent and humane judge, "You do not deprive a prisoner of life by finding him guilty of a capital crime: you but pronounce his case to be within the law, and it is therefore those who declare the law, and not you, who deprive him of life."
(Continues...)
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