Appealing to the brooding spirit of the law: good and evil in landmark judicial dissents.(Report)

When considering the role of judicial dissent, Chief Justice Hughes (1936) once wrote that "A dissent in a court of last resort is an appeal to the brooding spirit of law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting justice believes the court to have been betrayed" (p. 68). Hughes's statement captures the modern romantic ideology of judicial dissents in the United States: the lone dissenter, whose wisdom will one day be received as our nation continues along its progressivist course. In the mythic battle between good and evil the dissent provides a contrasting narrative to the majority opinion. The majority opinion does not espouse an unfettered good; rather, dissents demonstrate the ways in which the majority misses the mark. Within the narrative of the dissent, good and evil exist and act.

Good and evil abound in judicial opinions. The law and its telic ends are good. Since the Constitution derives its power from the will of the people, sovereignty and the majority will (tempered by minority protection), are good as well. The telic ends of the Constitution--freedom, justice, liberty, and equality--are good because they reinforce constitutional values. Within judicial dissents, evil is whatever contradicts the Constitution, hinders the will of the people, or works toward the antithesis of the Constitution's telic ends.

The law is a dualistic, adversarial system framed through the lens of winners and losers, right and wrong, good and evil, and heroes and villains. Ultimately, the Constitution is the winner, the right, the good, and the hero of whatever drama within which it finds itself. Nevertheless, the adversarial nature of the judicial system means that, on a microscopic level, as one person's rights and liberties are increased, another person's are decreased. Because of this, Lewis (1991) advocates adopting a tragic frame to understand legal interpretation rather than the heroic frame. Tragic frames work in opposition to the ethical reasoning of the judicial dissent. Judicial dissenting opinions perpetuate the heroic frame of the law and the Constitution; the law can increase equality and liberty, and hence justice. Dissenting opinions do not acknowledge the tragic frame. The law itself is not evil; the law is good. The law protects the individual and society from evil rulers, evil systems, and evil practices. Nevertheless, dissents frequently use the topos of "evil," or an equivalent expression, to support their claims. Evil produces a wrong decision by the Court and a negative result in society because it goes against the natural telic ends of the nation. Evil works within the system; the law itself is not evil.

Current research examines the types of dissents (Fried, 2002; Pound, 1954), the reasons for dissent (Peterson, 1981), and the impact of dissents (Frost, 2002). Communication scholars have not focused exclusively on justices' dissenting opinions, although they have considered the dissent as part of a larger analysis of an individual opinion (Gibson, 2006; Rountree, 2001). The rhyme and reason of judicial dissent is a much discussed topic amongst legal scholars (Blomquist, 2004; Campbell, 1983; Fried 2002; Fuld, 1962; Kolsky, 1995; Krishnakumar, 2000; Levin, 1944; Little, 1999; Moorhead, 1952; Peterson, 1981; Pound, 1956; Primus, 1998; Ray, 1988; Rountree, 2001; Russomanno, 2006; Stephens, 1952; Wald 1995; ZoBell, 1959) and judges (Brennan, 1986; Douglas, 1948; Scalia, 1994; Stone, 1942). Existing scholarship attempts to categorize judicial dissents and to determine the impact of dissents without understanding how dissenting justices argue, much less provide an account for why some judicial dissents become "great."

The landmark judicial dissents considered here construct acts rhetorically as "evil," framing the Constitution and the law as good or heroic. These argumentation moves allow the dissenting opinion to be framed rhetorically as consistent with the ideals of the United States' constitutional democracy. Unconcerned with routine questions of law, these dissenting opinions appeal to a larger sense of what America "should" be. Judge Wald (1995) states that dissents are "most apt to turn away from the technicalities of the majority holding and play to higher levels of aspirations and values that it sees desecrated by the majority's insistence on relentless imposition of precedent regardless of the consequences" (p. 1412). Making claims about what is good, true, and right enables justices to frame their dissenting opinions as "great" once the "brooding spirit of the law" concurs with the dissent post hoc.

This essay considers the following dissenting opinions: Harlan's Plessy v. Ferguson (1896), Holmes's Lochner v. New York (1905), Brandeis's Olmstead v. United States (1928), Murphy's Korematsu v. United States (1944), and Blackmun's Bowers v. Hardwick (1986). The five cases represent vastly different areas of law: race and segregation (Plessy), workers and the right to contract (Lochner), governmental wiretapping and the invasion of privacy (Olmstead), presidential and congressional war powers (Korematsu), and sodomy (Bowers). All but one of the majority opinions in these cases were overturned, after the "brooding spirit of the law" prevailed. In Plessy the majority crafted the "separate but equal" doctrine, which was subsequently overturned in Brown v. Board of Education (1954). In Lochner the majority determined that bakers had a "right to contract" and that states could not legislate limitations on the work week, which was overturned by West Coast Hotel Co. v. Parrish (1937). Although the Court upheld the legality of governmental wiretapping in Olmstead, it overturned that ruling in Katz v. United States (1967). The Court's Bowers opinion that a sodomy law did not violate equal protection was overturned in Lawrence v. Texas (2003). Only Korematsu has yet to be overturned by the Court, although a federal district court overturned Korematsu's conviction in 1983. These landmark dissents consider important constitutional questions, crafted by celebrated jurists. Although these are not common judicial dissents and the conclusions reached cannot be transferred easily to other lesser dissents, these dissenting opinions inform how the Constitution is understood.

I first examine these justices' claim that the Constitution is good. I then turn to different forms of evil that the justices claim exist. My analysis shows that although the justices argue that Constitution is good, they nevertheless claim that constitutional interpretation and the government can be evil. Judicial dissents warn of the evil of government both in a vague, broad fashion ("government" with the level or branch of government implied) and in a more specific, narrow manner (statutory legislation in particular).