Justice Benjamin Cardozo once compared a judge who dissents in a case to a gladiator making a last stand against the lions. At the Supreme Court, where voices are rarely raised and restraint is the norm, a fierce dissent can be a mighty sword. The more so when done from the court's elevated mahogany bench.
Six times this term, various justices disagreed with the majority so strongly that they chose to make their points out loud, in public and with flourish.
When the court struck down a Chicago ordinance prohibiting gang loitering, Justice Antonin Scalia said in a scalding dissent: "I would trade my right to loiter . . . in return for the liberation of my neighborhood in an instant."
On the last day of the 1998-99 term, when a majority said private individuals couldn't sue states over violations of federal rights, Justice John Paul Stevens accused the court of crafting a doctrine "much like a mindless dragon that indiscriminately chews gaping holes" in federal laws. That last morning of the term, June 23, produced an extraordinary hour of statements from the bench, including dissents by Justices David H. Souter and Stephen G. Breyer.
Traditionally only the author of the majority opinion delivers excerpts and a dissenting justice leaves his or her remarks for the written documents. But increasingly justices have been voicing their contrary views.
Because it's a break from the usual pattern and a demand for special attention, it is not a path for the timid.
MAKE IT DRAMATIC: A decade ago when the justices by one vote struck down a Texas statute against flag burning, Stevens, a Navy veteran and Bronze star winner, dissented, evoking memories of "the soldiers who scaled the bluff at Omaha Beach."
The year before, in 1988, when Scalia was the only dissent against upholding the independent counsel law, he spoke passionately for 10 minutes. "By its shortsighted action today, I fear the court has permanently encumbered the Republic with an institution that will do it great harm," he declared.
When the majority ruled this past May that students can sue schools for sexual harassment, Justice Anthony M. Kennedy predicted that schools would be hit by an "avalanche" of lawsuits and said the ruling would teach "little Johnny" a bad lesson. Justice Sandra Day O'Connor, the author of the majority opinion, had offered a preemptive rejoinder: No, the ruling would make sure "that little Mary may attend class."
Harry A. Blackmun was one justice who did not shy from revealing his emotions, and in 1993 he declared, "The execution of a person who can show that he is innocent comes perilously close to simple murder" when the majority ruled federal judges are not required to halt the executions of Death Row inmates who've exhausted their appeals and then claim new evidence of innocence.
INVOKE HISTORY: "The court today holds for the first time since the founding of the Republic . . . " Souter proclaimed in the 1996 case that was a prelude to this term's states' rights cases. This time around, when Souter dissented, his distinct Yankee voice could not have been firmer when he declared the majority flat wrong.
In 1991, when the majority said criminal defendants may sometimes be convicted even if their confessions were coerced, Justice Byron R. White proclaimed, "Today, a majority of the court, without any justification, overrules . . . vast body of precedent." White's thunder was especially remarkable because he had a reputation for the tersest announcements even on majority opinions.
PREDICT DIRE CONSEQUENCES: In 1994, when the majority ruled that judges could stop demonstrators from closely approaching abortion clinics on public sidewalks, Scalia angrily asserted that the court "has left a powerful loaded weapon lying about today" to suppress all sorts of important protest.
When the court invalidated a Georgia redistricting plan in 1995, Justice Ruth Bader Ginsburg said from the bench it would create endless litigation and perilous results. Two years later, when O'Connor dissented out loud from a ruling striking down the Religious Freedom Restoration Act, she emphasized how an earlier ruling--which the 1993 act was intended to reverse--was an affront to those who wanted to freely exercise their religious faith.
WHY DO THEY DO IT? Justice Stevens once said he read a dissent from the bench because he didn't want his views to get lost in the shuffle of the day's news.
Sometimes a dissent is simply the best way to have one's say, despite the loss. "The right to dissent," Justice William O. Douglas once said, "is the only thing that makes life tolerable."