July 05, 2006

The Point of Dissent

by PG

Non-lawyer writer Conor Clarke declares that Justice Scalia has "lost his mojo," and blames it on the Court's tilting further right and becoming more agreeable. Clarke concludes,

But in majority opinions, the name of the game is coalition-building, and while the Scalia who speaks in the first person plural is able to find room for a flash or two of wit, there's just no comparison with his dissents. You can read Scalia's majority opinions in Davis v. Washington or United States v. Gonzalez-Lopez, without cracking a smile, and -- a line or two notwithstanding -- Scalia's majority opinion in Hudson v. Michigan (which allowed unconstitutionally acquired evidence to be used at trial) could have been written by pretty much anyone.

I don't doubt that all this newfound relevance pleases Scalia. And he may well try to have his cake and eat it too by writing lots of blistering concurrences that take shots at anyone and everyone within rifle range. But that would be pointless. You might even say it would be a bit like Demosthenes on the beach, rattling off into a big, open nothingness.

As noted in the last two verses of Smells Like Scalia, the justice's rants are amusing and give those who agree with him a lovely sense of superiority, but tend to distance him from the colleagues against whom he rails. But I don't understand why Scalia's concurrences should be deemed any more pointless than his dissents. The entertainment value of his tirades against his liberal brethren seems to me the same regardless of whether it's a concurrence like Marsh or a dissent like Lawrence, and one point on which I credit Scalia is that he rarely falls into the self-pity of many conservatives in liberal-dominated fields. His dissents focus on their self-evident correctness rather than whining about being a lonely voice of righteousness.

The only reason to consider a Scalia dissent to be less "pointless" than a concurrence would be if the dissent eventually became the foundation for a reversal of the holding it criticizes. Has the Supreme Court ever adopted a Scalia dissent as a new majority rationale? The Court so rarely explicitly reverses itself that such an opportunity doesn't come often, and even Brown v. Board struck out for its own explanation rather than relying on Harlan's Plessy dissent (which is what Scalia has said convinces him of the Brown holding). To be a legal realist for once: dissents are probably more pointless than concurrences, because the writer of a concurrence may be the crucial fifth vote one will need to extend or limit the precedent later on, whereas the dissenter is, to be blunt, the loser. In a future Court missing Souter, Ginsburg, Stevens, Breyer or Kennedy, the reach of the Commerce Clause might rely on the nuances of Scalia's Raich concurrence, but I see no reason for an appellate advocate to parse his nastily funny Grutter dissent. The Court that declares all forms of race-conscious admissions to be unconstitutional will not do so by gibing at diversity.

July 5, 2006 04:41 PM | TrackBack
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