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This article is written by Vanya Verma from Alliance University, Bengaluru. This article talks about famous dissenting judgements in the US Supreme Court and the classification of dissenting judgements on grounds of social, political, economic, and legal or procedural issues.


It’s surprising how Justice Holmes, a great dissenter, said that dissenting views are “useless and unwanted.” Judges’ excessive indulgence in dissents may well detract from the prestige of court judgements and lead towards a loss of faith in the legal system’s stability. The main merit of the common law has been its capacity to strike a balance between the legal system’s two opposing needs: legal stability and the growth of legal principles to adapt to changing economic and social conditions.

Courts modify their theories and interpretations in response to changes in the training and thinking of the judges through whom they must speak in the changing political and economic foundations of the American Republic.

Meaning of dissenting opinion

A dissenting opinion is one written by a justice who does not have the majority opinion. Any justice on the United States Supreme Court can write a dissenting opinion, which can be signed by other justices. Judges have used the chance to write opposing judgments to convey their concerns or their optimism for the future.

What happens when a Supreme Court Justice dissents?

Many people wonder why a judge or Supreme Court justice would write a dissenting opinion when their side has effectively “lost.” Dissenting opinions can be useful in a variety of situations.

First and foremost, judges want to ensure that the reasons for their disagreement with the majority view in a court case are recorded. Furthermore, posting a dissenting opinion can assist the majority opinion writer in clarifying their stance. Ruth Bader Ginsburg used this as an example in her talk on dissenting opinions.

Second, a justice may write a dissenting opinion to influence future decisions in cases involving situations comparable to the one at hand. “A disagreement in a Court of Last Resort is an appeal…to the intelligence of a future day…” said Chief Justice Charles Hughes in 1936. In other words, a justice may believe that the decision violates the rule of law and expects that future decisions would be different based on the reasoning presented in their dissent. For instance, in the Dred Scott v. Sandford (1856) case, only two people disagreed that enslaved Black people should be treated as property.

Justice Benjamin Curtis expressed his displeasure with the decision in strong dissent. When Justice John M. Harlan dissented from the Plessy v. Ferguson (1896) verdict, arguing against allowing racial segregation in the railway system, it became a renowned example of dissenting opinion.

A third reason a justice might write a dissenting opinion is in the hope that through their opinions they might persuade Congress to pass legislation to correct what they regard as flaws in the way the law is written. Ginsburg gives an example of a case in which she wrote a dissenting opinion in 2007. The issue at hand was the time limit within which a woman might file a lawsuit for pay discrimination based on gender. The law was worded quite narrowly, requiring a person to file a  lawsuit within 180 days of the discrimination taking place. However, when the decision was made, Congress rose to the occasion and altered the statute to considerably expand the time frame.

Most famous of the U.S. Supreme Court dissents

If we see the history of the Republic, there have been many hot-button issues that have been brought before the Supreme Court of the United States. Some of them have been unanimous, but many have had dissenting opinions that have become famous for their rights. 

Dred Scott v. Sandford (1857)

Dred Scott was a slave belonging from Missouri whose master had transported him to Wisconsin Territory, where slavery was considered to be illegal. Scott said that he was a free man from that point onwards. In this case, under Chief Justice Roger Taney’s direction, the Court ruled 7-2 against Dred Scott’s claims to freedom. But it went a step further. The Supreme Court concluded that because black people in the United States were not citizens, they had no right to sue. It also overturned the Missouri Compromise, stating that the federal government of the United States could not outlaw slavery in the territories.

Needless to say, the two opposing viewpoints were rather bitter.

Justice McLean: “Being born under our Constitution and laws, as a person of foreign birth, no naturalisation is required to make him a citizen… Where there is no slavery, the presumption is in favour of freedom, regardless of colour… Does the master carry with him the law of the State from which he removes into the Territory?… A slave is more than a piece of property. He bears the imprint of his Creator and is subject to God’s and man’s rules, and he is destined to an endless existence…”

Justice Curtis: “According to the fixed rules that govern the interpretation of laws, when a strict interpretation of the Constitution is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we no longer have a Constitution; we are under the government of individual men, who for the time being have the power to declare what the Constitution is in accordance to their views of what it ought to mean ”

The Dred Scott ruling was overturned after the Civil War, when the 13th, 14th, and 15th amendments were passed.

Plessy v. Ferguson (1896)

On June 7, 1892, Homer Plessy, an octoroon (i.e. 7/8 white and 1/8 black) was arrested in Louisiana on grounds of sitting in an all-white railcar. The arguments kept forth by Plessy before the court was that his rights under the 4th, 13th and 14th amendments have been violated that provided him with equal treatment as a citizen. In this case, the court ruled 7-1 against him. The court stated that separate but equal facilities were not violative of the rights of Plessy to equal treatment. However, the Court did not succeed in achieving a unanimous decision with the famous dissent of Justice Harlan. The dissent is as follows:

Justice Harlan: “Our Constitution is colourblind, and it neither recognises nor tolerates classes among the citizens. All citizens are equal before the law in terms of civil rights. The most humble is equal to the most powerful. When it comes to a man’s civil rights as guaranteed by the supreme law of the land, the law treats him as a man, regardless of his surroundings or colour. If there are any negative consequences from mixing the two races on public highways designed for the benefit of all, they will be infinitely less than the negative consequences that will certainly emerge from state law controlling the enjoyment of civil rights based on race.”

Until Brown v. Board of Education (1954), confirmed the views 58 years later, Harlan’s dissent would stand as a testament to his progressive ideas on civil rights.

Olmstead v. the United States (1928) 

In the year 1924, Roy Olmstead and his friends, well-known bootleggers during the Prohibition Era, were arrested after they had incriminated the evidence that was collected related to their bootlegging activities. Wiretapping was used to gather the evidence. The evidence was deemed to be admissible in court, and the convictions were upheld. In a 5-4 decision, the Supreme Court in this case legally approved wiretapping. 

Justice Brandeis: “Decency, security, and liberty all demand that government officials be subjected to the same rules of conduct that govern citizens.” In a government of laws, the government’s existence is jeopardised if it does not strictly follow the law. Our government is the potent, omnipresent teacher. It teaches the entire population by example, for good or for ill. Crime is contagious. IIf the government breaks the law, it develops contempt for the law, which then inspires every man to become a law unto himself, resulting in anarchy. Declaring that the purpose justifies the means in the administration of criminal law, declaring that the government may commit crimes to win the conviction of a private criminal, would result in terrible retribution. This Court should resolutely set its face against that destructive concept. Declaring that in the administration of criminal law, the end justifies the means, that the government may commit crimes to convict a private criminal would result in severe retaliation. This Court should resolutely set its face against that destructive concept.”

In the 1967 Katz v. United States decision, wiretapping was eventually declared as an unlawful seizure under the Fourth Amendment by the Court.

Minersville School District v. Gobitis (1940)

With the threat of war looming over Europe in the late 1930s, a debate arose between patriotic school boards and faithful Jehovah’s Witnesses: could Jehovah’s Witnesses be forced to salute the American flag in schools, despite their belief that worshipping earthly symbols is sacrilege? After a long period of harassment and discrimination in the school system, the Gobitas family was forced to find out when their two children, William and Lillian, were expelled for refusing to salute the flag. The Supreme Court, in this case, ruled 8-1 that the school board had the authority to make children salute. Justice Stone, the lone dissenter, issued this powerful dissent.

Justice Stone: “It is claimed that because the Minersville School Board and others believe that uniformity is better for the country than the constitutionally mandated religious liberty, the courts are not free to cast judgement on the Board’s decision. The people’s conviction that democratic processes must be safeguarded at all costs is expressed in the Constitution. It is also a statement of faith and demand that mental and spiritual freedom must be safeguarded, which the government must follow if it is to adhere to the fairness and moderation that no free government can survive without.”

In a 6-3 decision in West Virginia State Board of Education v. Barnette, the Supreme Court overruled the Gobitis judgement in 1943.

Korematsu v. the United States (1944)

The Roosevelt administration issued Executive Order 9066, requiring the internment of all citizens of Japanese descent on the West coast, shortly after the Japanese attack on Pearl Harbor. Fred Korematsu purposefully disobeyed the order to report and be relocated, claiming that his right to due process had been violated under the 5th Amendment. The court affirmed the internment order on the grounds of military necessity in a 6-3 judgement. Justice Roberts, the Court’s lone Republican, was joined by Justices Murphy and Jackson in the issuance of racial-charged dissents.

Justice Jackson: “A military command, however unconstitutional, is unlikely to persist longer than the military emergency.” Even at such a time, a succeeding commander has the authority to rescind everything. But once a judicial opinion rationalises such an order to show that it conforms to the Constitution, or rather rationalises the Constitution to show that the Constitution sanctions such an order, the principle of racial discrimination in criminal procedure and of transplanting American citizens is forever validated.”

On November 10, 1983, Korematsu himself had his conviction overturned but the Korematsu decision was never overturned.

Abington School District v. Schempp (1963)

Edward Schempp, a Unitarian Universalist, sued the local school board for requiring his son to read the Bible every day before class. The reading of the Bible was required by state legislation. The Supreme Court, in this case, ruled that the act violated the plaintiff’s 1st and 14th amendment rights in an 8-1 majority. The decision’s contentiousness is reflected in Justice Stewart’s dissent.

Justice Stewart: “It could equally be argued that parents who want their children to be exposed to religious influences can sufficiently fulfil that objective off school grounds and outside of school hours.” Despite its seeming persuasiveness, this argument misunderstands the fundamental constitutional reason for allowing the exercises in question in these cases. Religious exercises are placed in a compulsory state educational system that structures a child’s life in such a way that if religious exercises are held to be an impermissible activity in schools, religion is placed at an artificial and state-created disadvantage. In this sense, allowing such activities for individuals who desire them is required if schools are to be neutral in matters of religion. And a reluctance to allow religious exercises is perceived as the development of a religion of secularism, or at the very least, as official backing for those who believe that religious exercises should be undertaken only in private.”

The judgement paved the door for ending school-led prayer in public schools. Today, those who want to bring faith and prayer back into public schools point to Stewart’s dissent as a testament to the inherently religious nature of the U.S. and its people.

FCC v. Pacifica Foundation (1978)

In the early afternoon of 1973, John Douglas was travelling with his son when the radio started playing a sketch ‘Seven Words You Can Never Say on Television’ by irreverent comedian George Carlin. In favour of the FCC, John Douglas claimed that the radio station had illegally broadcast obscene material on public airwaves and that his kid had been exposed to words that his father would never want him to hear. The Court, in this case, ruled 5-4 that the sketch’s indecent (not obscene) nature limited its First Amendment rights, and the government was given a stronger hand in controlling it.

Justice Brennan: “The Court’s balance, by necessity, fails to give sufficient weight to the interests of listeners who seek to hear broadcasts that the FCC deems offensive.” It allows majoritarian preferences to fully block a protected message from reaching the homes of recipients that are unoffended minorities. This Court has made no decisions that support such a result. It is quite evident that I find the Court’s attempt to unstitch the warp and woof of First Amendment law to reshape its fabric to cover the patently wrong result the Court reaches in this case dangerous as well as lamentable. The Court may only authorise the censorship of communications purely because of the words they contain due to severe ethnocentric myopia.”

Lawrence v. Texas (2003)

On September 17, 1998, John Lawrence was arrested when police entered his home in response to a fake 911 call and caught him engaged in a sexual act with a man. Such acts were banned under the anti-sodomy statutes of Texas. The Texas Act was found to be an unlawful intrusion into the private lives of American individuals by the Supreme Court, which decided the case in ratio 6-3. Justice Scalia was one of the dissenters.

Justice Scalia: “At the end of its opinion, after destroying the underpinnings of our rational-basis jurisprudence, the Court argues that the current case ‘does not address whether the government must offer official recognition to any relationship that homosexual persons desire to enter.’ An earlier passage in the Court’s opinion, which notes the constitutional protections afforded to ‘personal decisions relating to marriage, procreation, contraception, family relationships, child-rearing, and education,’ and then declares that ‘persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do,’ is more illuminating than this bald, unreasoned disclaimer. If moral disapproval of homosexual conduct isn’t a “legitimate state interest” to prohibit it, and if, as the Court coos (casting aside all pretence of neutrality), “sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a more enduring personal bond,” what justification could there possibly be for decriminalisation? Certainly not procreation inducement, given that the sterile and old are permitted to marry. This case “doesn’t affect the subject of homosexual marriage only if one believes that principle and logic have no bearing on this Court’s rulings.” Many will hope that this is the case, as the Court reassuringly assures us.”

Scalia’s dissent turned out to be prophetic, though not in the way he had hoped. The Obergefell v. Hodges judgement, handed down in 2015, made gay marriage lawful in the United States. Scalia’s dissent was very persuasive.

Classification of dissenting opinions

The opposing opinions will be categorised under the four sections below with a focus on social, political, economic, and legal or procedural issues. It is self-evident that this classification is fundamentally empirical, and that the majority of the decisions involve points that is not limited to any one field, and that not only overlap but also encompass all of the four sections stated above.

Social problems

The social problems can be further classified as follows:

  • Freedom of religion

With the change in the 1937 doctrine, the Supreme Court essentially withdrew from this field, leaving legislative, and the executive departments of the states and the country to decide on the uses and administration of property. Civil liberty and human rights became a prominent focus for a liberal court.

The Jehovah’s Witnesses, a small but active association of zealots, became the most prominent test case for the constitutional safeguards of freedom of religion and speech. This was the group that was formerly known as the Russellites, whose interpretations of biblical prophecies contained particular anticipation of “Armageddon,” or “the second coming.” After Pastor Russell died, ‘Judge’ Rutherford took over the leadership, proving to be an assertive and militant defender of the rights and liberties of his followers.

In Jones v. Opelika (1942), the question of religious freedom and its constitutional protection divided the Court in an extraordinary five-to-four split. This is the first case of this term in which Black and Douglass joined the Chief Justice in a dissent that Murphy agreed with. The majority decided that sales of certain Jehovah’s Witness certain literature publications were more commercial than religious, and so such transactions might be subjected to a “non-discriminatory tax” by local governments. The dissenting opinion rejected the ordinance’s regulatory nature, arguing that the legislation did not attempt to provide for an exact reimbursement for services done, but instead established a “fiat tax,” and that the state court had not upheld the ordinance as regulatory.

Stone argued vehemently that this type of “fiat tax” has been repeatedly ruled unconstitutional by the Supreme Court, and that “freedom of press and religion, explicitly guaranteed by the Constitution, must at least be entitled to the same freedom from burdensome taxation that the more general phraseology of the commerce clause has been thought to extend to interstate commerce.

Furthermore, the Chief Justice stated that the ordinance should be declared unlawful on an independent ground, namely, that the licence for distributors of the disputed literature was revoked at will and in the unrestricted discretion of administrative officials.

The disagreement was well received by lamen and attorneys alike, who agreed with the criticisms of the majority opinion.

The dissenting opinion, which is remarkable because Murphy, Black, and Douglas took the unprecedented step of repudiating their concurring opinion in the Gobitis case, was destined to face extraordinary sanction in a short period.

  • Freedom of Speech

The five-to-four decision in the Bridges case is likely the most notable event of the October 1941 term, involving the balancing of fundamental interests such as judicial independence with freedom of speech and press.

The 5-4 ruling in the Ritter’s Cafe case (1942) continues the alignment and interplay of philosophies that occurred in Bridges v. California (1941). Frankfurter’s strong confidence in the controlling reach of state powers clashes with Black’s argument that the due process clause protecting freedom of speech should be given the most latitude and impact. However, in this case, the roles are reversed. Black represents the court’s minority, while Frankfurter represents the majority.

Both sides agree that picketing falls within the umbrella of freedom of speech protections, but that picketing entails more than that. The point of disagreement focuses on the criteria to be employed in drawing the line, and neither side appears to have come up with a viable answer.

The concept of “economic context,” or the economic capacity of the person against whom the picketing is intended, as developed by Justice Frankfurter to define the allowable scope of peaceful picketing, isn’t exactly apparent. On the other hand, it is debatable whether the “identification of the picketed person” is a sufficient basis for valid picketing with the minority. Before the court adjourns, it appears that there is something else that needs to be said.

  • Right of privacy

The right to privacy was further restrained by the Supreme Court in Goldstein v. the United States (1942) and Goldman v. the United States (1942), in favour of enhancing the enforcement of the criminal law. It is unclear if the emergency for war and the publishing of Justice Roberts’ report on Pearl Harbor, which was relied on in the Goldman case, were factors responsible for the alignment of the Justices.

Justice Roberts had delivered the majority opinions in both cases and the dissenters were the Chief Justice and Justices Frankfurter and Murphy in both the cases.

It appeared in the case of Goldstein v. The United States, that the government’s two chief witnesses were co-conspirators who turned state’s evidence after discovering that certain implicating phone conversations had been overheard by federal investigators via wiretapping. The court’s decision is based on the idea that only the victim of the wiretapping operations is entitled to the privilege under the Fourth Amendment, and that because petitioners were not parties to the wiretapping activities, they were not covered by Section 605 of the Federal Communications Act, 1934. The court decided that even if the Act was violated, it would not render the testimony obtained inadmissibly; rather, the violator would be subjected to the Act punishments provided under the Act.

As the dissent points out, this argument appears to ignore the statute’s text, which bans the disclosure or dissemination of intercepted material, whether for use by the interceptor or by another. The minority believes the second Nardone case (1939) should be applied, and rejects the majority’s distinguishing criterion that the petitioners in the main case were not parties to the intercepted messages. 

As the Federal Communications Act, unlike the Fourth Amendment, does not seek to create a privilege but only makes particular conduct illegal, it appears that the opinion of the minority is more grounded than the majority. It is possible that, at least until the end of the war emergency, Justice Murphy’s scholarly view will be considered as the better law.

  • Right to counsel

In both the cases of Betts v. Brady (1942) and Glasser v. The United States (1942), the court was split on how to delineate the constitutional right to counsel.

In the Betts case, the petitioner was unable to hire counsel due to a lack of cash, unsuccessfully requested the state court to assign one, he was sentenced to eight years in prison for robbery. The Supreme Court was asked to decide whether denying counsel to an indigent accused is a breach of the constitutional guarantee of the 14th Amendment.

The majority opinion, which had been rendered by Justice Roberts, upheld the trial court’s judgement that “The accused was not helpless; he was a forty-three-year-old man of average intelligence and competence to protect his interests during the trial of that single issue. He’d already appeared before a criminal court, pleaded guilty to larceny, and served a term, so he wasn’t completely unfamiliar with the criminal procedure.”

The Court was concerned that applying the 14th Amendment to the facts of the case would involve expanding the constitutional right to counsel to countless scenarios involving minor offences.

Since the petitioner was sentenced to eight years in jail, it appears that the “difficulty of determining where to draw the line” had gone too far. The same court solemnly stated in Glasser v. the United States, “The right to obtain the assistance of counsel is too fundamental. and absolute to allow courts to indulge in nice calculations as to the degree of prejudice arising from its denial,”

Two mindsets are clearly at odds, and it’s easy to see why the judge who wrote this admonitory and well-considered statement for the majority of the court should have sided with the minority in Betts v. Brady.

The protection of life is indeed more vital than the protection of liberty, and Powell v. Alabaimr (1932) differs from Betts v. Brady on this basis. Betts v. Brady is based on the 14th Amendment, whereas Glasser v. The United States (1942) and Johnson v. Zerbst (1938) are both 6th Amendment applications. However, in the Brady case, the majority of the court casts doubt on these distinctions when, rather than limiting the right to counsel under the 14th Amendment to cases involving the death penalty, it relies on the rather loose and indefinite proposition that lack of counsel should not result in a lack of “fundamental fairness.”

This condition appears to be designed to allow cases other than those involving the death sentence to fall under the 14th Amendment’s protection.

Betts v. Brady and Glasser v. The United States have one thing in common, both cases indicate that law and justice can still be far apart on occasion, and the dissenting judgement in each of them appears to be more realistic and just than the majority position. In the Glasser case, the significance of protecting a basic constitutional right may have justified the decision, even at the risk of going too far, but the opposite appears to be true in Betts v. Brady.

  • Due process and coercion of testimony

In Hysler v. Florida (1942) and Lisenba v. California (1942), the court was split on whether testimony had been extorted through coercion, in violation of the 14th Amendment. The majority upheld both convictions. Black, with whom Douglas agreed in both cases, and Murphy in the Hysler case wrote the dissenting opinions. Justice Frankfurter wrote the decision in the latter case, revealing his unwillingness to drag the federal system back into any form of interference with the realm of state courts.

It was a judgement based on facts. The decision appears to be based on the premise that the charges of coercion were false and thus did not warrant a trial court hearing. The minority utilised lengthy excerpts from the record to support their argument that the case should have been remanded to the lower court for further proceedings.

Political problems

The topics covered under this area will be confined to those related to the dual system of government and the distribution of power between state and federal entities.

  • Substantive law

In Kirschbaum v. Walling (1942) and Cloverleaf Butter Co. v. Patterson (1942), the Court was split on the scope of federal powers under the interstate commerce clause.

In the Kirschbaum case, Justice Roberts expressed his dissent with the majority of the court in what was a far-reaching application of the Wages and the Fair Labor Standards Act, 1938.

A 5-4 majority of the Supreme Court decided in the Patterson case that the Renovated Butter Act demonstrates Congress’ aim to “occupy the field” and hence prevent the exercise of state authorities in the same area.

“To find an intent to restrict state power, not required by the words of the statute, is to condemn a working, harmonious federal-state relationship for the sake of a sterile and harmful insistence on exclusive federal power,” stated the Chief Justice, who was joined by Justices Frankfurter, Murphy, and Byrnes.

The Chief Justice highlights the increasingly fading notion that the formulation of federal acts must be designed following the basic requirement of the dual system of government. In Reitz v. Mealey (1941), the court split 5-4 on the issue of defining the overriding force of federal law.

The court’s alignment differs once more, with Justice Roberts writing the majority opinion and Douglas authoring the dissent, which was joined by Black, Byrnes, and Jackson. The court held that a New York statute that suspended a car operator’s driving licence for nonpayment of a judgement for an injury caused by the operation of the car until the judgement was satisfied-otherwise than by a bankruptcy discharge-and gave the judgement creditor the power to lift the suspension did not violate Federal Bankruptcy Law, 1978.

The majority ruled that the Act was a valid exercise of the state’s police power to ensure the safety of its highways, but refused to rule on the constitutionality of the judgement creditor’s authority conferred by the act since it had not been utilised in the instant case. Despite the discharge in bankruptcy and breach of federal law, the minority found the mere presence of the power sufficient to place the debtor at the mercy of his creditor.

The Chief Justice’s dissenting opinion in the United States v. Pink (1942) exemplifies his view of the dual system of government and the role it bestows on the courts. While Stone’s philosophy in Pink’s case is similar to that which was expressed in the Patterson case, Justice Frankfurter voting with the majority in a concurring opinion is surprising.

The Pink judgment is a revolutionary piece of international law, Holding that since a foreign government has been recognised, state courts are barred from applying local law and policy to property disputes within the states.

The Chief Justice dissented, claiming that neither such recognition nor the associated transfer of a foreign state’s claims to the American government was forced by their words or history. Even though the executive agreement is believed to have become the supreme law of the land, this finding is stated to stand.

  • Jurisdiction and procedure

The majority in the Kepner case, led by Justice Reed, denied a state court’s ability to enjoin the prosecution of a federal court suit brought under the Federal Employers’ Liability Act, 1908. Frankfurter, accompanied in his dissent by the Chief Justice and Justice Roberts, criticises the decision, claiming that the Federal Employers’ Liability Act did not limit the jurisdiction of state courts. In his opinion, Justice Frankfurter’s concern for the “controlling factor of public interest” contained in the “important national role of which the railroads are the agency” is evident. In his concurring decision in the Miles case, Justice Jackson criticized Frankfurter’s decision.

In Miles v. Illinois Central Railroad Co. (1942), Justice Byrnes joined the dissenting three in the Kepner case. In light of these decisions, it’s no surprise that Frankfurter wrote the majority opinion in the Toucey case, which held that federal courts lack the power to enjoin the parties in a state action from relitigating the same issue decided by a federal decree, thereby overruling by implication the authority of Supreme Tribe of Ben Hur v. Cauble (1921). The roles are reversed here: Reed, who wrote the majority decision in the Kepner and Miles cases, is now the author of a strident dissent supported by the Chief Justice and Justice Roberts.

The previous dissenting judgements written by Justice Frankfurter are for the majority in an opinion that has the same stylistic characteristics as the Rochester Telephone case (1939), but which is possibly not equally persuasive in its reasoning and conclusion.

Economic problems

  • Construction of economic legislation

The court was split into six decisions because of the passage of laws aimed at boosting people’s economic standards, either directly or indirectly through the promotion of industrial development. Again, the court does not appear to be in a consistent alignment.

Even though Justice Douglas was regularly joined by Justices Black and Murphy in what has been dubbed the court’s “left-wing,” they were on opposing sides in the United States v. Emory (1941). In this case, Justices Reed, Roberts, and Jackson joined the majority, while Douglas joined the dissenting Justices Reed, Roberts, and Jackson. The act granting priority to United States claims does not inconsistent with the principles or purpose of the National Housing Act, 1934 according to the court.

The dissent claims that this judgement violates the Housing Act’s goals by deterring private investment and so delaying “that economic recovery that was the aim of the legislation”

  • Administrative discretion

Reviewability of administrative discretion had divided the court into eight decisions involving three agencies, the National Labor Relations Board, the Interstate Commerce Commission, and the Bituminous Coal Division.

In the Southern Steamship Co. case (1942), Justices Reed, Black, Douglas, and Murphy disagreed with the majority’s decision that the National Labor Relations Board abused its discretion by ordering the reinstatement of seamen fired by their employer for striking on board a docked ship and thus committing mutiny. In Gray v. Powell (1941), Justice Byrnes, writing for the majority, sided with the dissenting Justice Roberts and the Chief Justice, upholding the Bituminous Coal Division’s discretion in denying the position of the producer to a Railroad lessee of coal mines operated by an independent contractor for the railroad’s exclusive use.

Douglass wrote the majority decisions in the two grandfather clause cases, in which the court overturned the Interstate Commerce Commission’s rulings, with Justices Jackson and Frankfurter dissenting. Their opinion is particularly significant because of the reviewability of the administrative action standard that has been established. The two judges express their belief in the administrative process, which they believe should be given more discretion whenever the subject issue falls properly within federal jurisdiction and does not infringe on state rights.

  • Procedural requirements to review

The reviewability of administrative processes by the courts, one of the most important legal concerns in the twenty-first century, divided the court into two key cases. In Columbia Broadcasting System v. the United States (1942), the Chief Justice issued the most important ruling, with Justice Frankfurter authoring the dissent, which was supported by Justices Reed and Douglas.

The court was split on whether certain regulations issued by the Federal Communication Commission, setting forth new requirements for the granting and cancellation of radio station licences, were orders reviewable under Section 402 (a) of the Communication Act of 1934, 47 U. S. C. A., Sec. 402 (a) of the Communication Act of 1934, 47 U. S. C. A., Sec. 402 (a) of the Communication Act of 1934, 47 U. S. C. A., Sec. 402 (a). Because these criteria were in direct contrast with contracts between the Columbia Broadcasting System and its affiliated stations, some of the stations informed the complainant that they would no longer be bound by their contracts once the regulations came into effect. As a result, the court determined that the regulation in question damaged the complainant’s rights immediately, rather than waiting for future administrative action, as the dissent claims. The Chief Justice places a strong emphasis on the facts of the case and refuses to pay attention to what he refers to as an “over-refined method,” implying that of the minority. At the very least, Frankfurter responds, arguing that courts are not the only guardians of people’s rights and liberties, and that “this litigation has prevented the Commission from testing by experience the practical wisdom of a policy found to be required by the public interest for more than a year.”

It’s worth noting that Justice Frankfurter’s idea here appears to be slightly at odds with what he wrote for the majority of the court in the Scripps-Howard case (1942), “judicial review would be an ineffective formality if the circumstances had irreparably changed before the remedy could be affected.”

The opposing Justices Douglas and Murphy in the Scripps-Howard case pushed the administrative process’ function and characteristics to their limits, denying the inherent power of the reviewing court to grant a stay of enforcement of the administrative order while the judicial review was pending.

Legal problems 

  • Stare decisis

The case of American Surety Co. (1946) is an intriguing instance of the different degrees of reliance placed on the principle of stare decisis by members of the court.

“The sole value possessed by Merrill v. National Bank of Jacksonville (1899) is the fact that it has been on the books for over forty years,” the dissenting Justices, Douglas and Black, said in response to Justice Frankfurter’s claim that the decision was required by the Merrill case.

Although precedents appeared to be more on the side of the dissenting Justices Black, Douglas, Murphy, and Byrnes in the Commercial Molasses Corporation case (1941) than the majority, the dissenters stated their willingness to disregard precedents to reach a result more in line with the complexities of modern shipping.

In the Aldrich case (1963), Justice Jackson made an unsuccessful plea for stare decisis in a vigorous dissent in which he was supported by Justice Roberts. The majority, led by Justice Douglas, held that intangibles are immune from inheritance taxation by states other than the domiciliary state.

  • Legal formulas

In his dissent in the United States v. Bethlehem Steel Corp. (1942), Justice Frankfurter blamed the majority for holding “because the circumstances of this case cannot be fitted into a neatly carved pigeonhole in the law of contracts, ‘daylight robbery,’ exploitation of the ‘necessities of the country at war, must be consummated by this Court.”

Justice Frankfurter expresses his major contention that courts should “not let themselves be used as tools of inequality and injustice,” drawing on analogies from other domains of law and his typical reliance on English precedents. Justice Black delivered the majority opinion, with Justice Murphy filing a concurring opinion and Justice Douglas dissenting on a separate issue than Justice Frankfurter because the Chief Justice and Justices Jackson and Roberts were unavailable to participate in the judgement. Unfortunately, a smaller court’s decision was weakened by the fact that it was split three ways. This is especially true given that it came at a time when an authoritative explanation of relations between the Government and private contractors was needed.

The members of the court only agreed to condemn the transaction’s moral inequities, with the majority indicating that it is Congress’ responsibility to deal with such situations, while Justices Frankfurter and Douglas attempted to support their moral outrage with applicable legal principles through various means.

As a result, the dissents have centred on issues primarily involving human rights, with little regard for private property rights. The modern demands for these objectives have assented to unrestricted state police power; congressional regulation of commerce with minimal judicial restraint; executive power channelled through agencies with broad rulemaking authority and liberal procedures; and the modern demands for these objectives are assented to. Different degrees of tolerance for legislative independence and executive discretion is reflected in the dissents. There are sporadic indications of conservatism appearing here and there, evoking memories of the days when the court was more concerned with property rights. 


The practice of dissent has implications for the deliberative nature of the decision making of the courts over time. Dissenting opinions preserve the conversation between previous Courts on issues concerning questions of law. Future judges could only evaluate the grounds of judgement if the majority opinion was made public. Judges now have access to the conversation that led to the specific grounds for a decision, thanks to the advent of the practice of dissent. Dissenting opinions are therefore valuable not only if they catch the majority of a future court; they are also valuable as carriers of judicial discussion over time, connecting the debate of successive generations of justices and judges. These opinions allow Justices and other judges to engage in an intertemporal conversation that could become a distinctive feature of the judiciary.


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