The Lone Dissenter

The dissenting opinion plays a paradoxical role in American law. On the one hand, it weakens what Judge Learned Hand, an avowed opponent of dissenting opinions, called the “monolithic solidarity on which the authority of a bench of judges so largely depends.”1 On the other hand, according to Justice William J. Brennan, a vigorous defender of the dissenting opinion, it “safeguards the integrity of the judicial decisionmaking process by keeping the majority accountable for the rationale and consequences of its decision.”2 The paradox of the dissenting opinion is inherent in the unique nature of the judiciary among the three branches of the federal government. Unlike the legislative and executive branches, the judiciary does not command obedience by the threat of force but instead seeks to persuade through the power of reason. Our courts do not act; they speak. Like the prophets of the Old Testament, the power of the Court is in its voice. This has been recognized since the very beginning. It is why Hamilton emphasized, in that famous passage in Federalist 78, that the judiciary “may truly be said to have neither force nor will, but merely judgment.”3 And it is surely why Chief Justice John Marshall— in words no less familiar to lawyers than Hamilton’s—justified the function of judicial review by his emphatic reference to the “duty of the judicial department to say”— to say—“what the law is.”4 This is what Professor Alexander Bickel called “the mystic function” of the Supreme Court. When it speaks through its opinions, it provides the symbolic “voice of the Constitution,” by articulating and defending “a coherent body of principled rules” of law that stand above ordinary politics.5 Indeed, when the Court is interpreting and enforcing the rules established by the Constitution—the supreme law of the land—its rulings even stand above, and can nullify, ordinary laws enacted through the democratic process established in Article I. So, it is critical that the Court get it right. Because the Court’s authority is ultimately dependent on its ability, through its written opinions, to win the assent of the political branches of government, we can see why the Court’s credibility is at its zenith when the Court speaks as one. The Marshallian postulate that it is the “duty of