Former Supreme Court justice Potter Stewart calls dissenting opinions "subversive literature." And the late chief justice Oliver Wendell Holmes, the "Great Dissenter", called them "useless and undesirable."
The justices' comments reflect a widely held view that dissents confuse people and lessen the court's prestige. But now a justice is dissenting about dissents.
Justice William J. Brennan Jr., in remarks prepared for a lecture last night at the University of California Hastings College of Law, said justices have an "obligation . . . to speak up when we are convinced that the fundamental law of our Constitution requires" a result that differs from the majority's view.
Dissents, Brennan says, can serve as "damage control," limiting the sweep of majority opinions and giving "practical guidance" to those wishing to circumvent the rulings.
Dissents also "ride herd on the majority," he says, demonstrating "flaws . . . in the majority's legal analysis."
Then there are the dissents Brennan calls "prophetic," such as Justice John Marshall Harlan's lone dissent in Plessy v. Ferguson, a ruling that upheld "separate but equal" facilities for whites and blacks. That dissent became the majority view 60 years later in Brown v. Board of Education.
Brennan's speech, unlike one last month that was seen as a strong rebuttal to criticism of the court by Attorney General Edwin Meese III, generally steered clear of the debate over the role of judges in constitutional interpretation. Meese and other administration officials have accused justices like Brennan of straying too far from the words of the Constitution and the intent of its authors.
Brennan, the court's senior liberal, noted last night that justices' "views must be subject to revision over time, or the Constitution falls captive . . . to the anachronistic views of long-gone generations."
Brennan said that "when a justice perceives an interpretation of the Constitution to have departed so far from its essential meaning, that justice is bound, by a larger constitutional duty to the community, to expose the departure and point toward a different path."
Except for that reference to judicial interpretation, Brennan's lecture focused on justifying the value of dissenting from majority views.
The topic would have been an odd one for Brennan in the past. Appointed in 1956, he rarely dissented during his first dozen years on the court, when liberals under Chief Justice Earl Warren dominated. Brennan dissented only three times during the 1968-1969 term, Warren's last.
But in recent terms, Brennan has voted in dissent, according to the Harvard Law Review, more than 50 times a year as the court under Chief Justice Warren E. Burger has shifted toward the right.
Brennan said his persistent dissents in every capital punishment case might seem "simply contrary, tiresome or quixotic," but he said he believes that the Eighth Amendment prohibition against "cruel and unusual punishments" makes the death penalty unconstitutional.
"This is an interpretation to which a majority of my fellow justices -- not to mention, it would seem, a majority of my fellow countrymen -- do not subscribe," he said. "This kind of dissent constitutes a statement by a judge as an individual: 'Here I draw the line.' "
Brennan said many former justices believed that dissents should be limited because they detract from the "legitimacy" of the ruling and the court's authority.
Brennan agreed that unanimity, especially in major constitutional rulings, is important. But "unanimity is not in itself a judicial virtue," he said, adding that he would continue to dissent in order to "contribute to the integrity of the judicial process."
"The dissent . . . safeguards the integrity of the judicial decision-making process by keeping the majority accountable for the rationale and consequences of its decision," Brennan argued.
"The most enduring dissents," he said, are those, like Harlan's, that "soar with passion and ring with rhetoric . . . the dissents that often reveal the perceived congruence between the Constitution and the evolving standards of decency that mark the progress of a maturing society and that seek to sow seeds for future harvest."
Brennan praised dissents by justices Robert H. Jackson's in the Japanese internment case, Korematsu v. U.S., and by John Marshall Harlan's grandson and namesake in Poe v. Ullman, on the right to privacy, as among the most powerful in this century.