At SCOTUS, Today's Dissent Can Become Tomorrow’s Majority Opinion

Examining the role of dissenting opinions in U.S. legal history.

Damon Root|Oct. 22, 2015 12:37 pm

Writing at The New York Times, liberal legal pundit Dahlia Lithwick favorably reviews the intriguing new book Dissent and the Supreme Court by legal historian Melvin Urofsky. "According to his central thesis," Lithwick notes, "a dissent can become important, can indeed shape the future, when it becomes part of the larger 'constitutional dialogue.' Urofsky’s concern here is for the 'canonical or prophetic' dissents that go on to shape the future deliberations of the justices, their successors and the American public."

What a great premise for a book about SCOTUS. One of the more under-appreciated themes in American legal history is that today's dissenting opinion can become tomorrow's majority opinion. One of my favorite examples of this phenomenon occurred as a result of the momentous 1873 decision known as The Slaughter-House Cases. At issue was a Louisiana law granting a private corporation the exclusive monopoly power to operate a central slaughterhouse for the city of New Orleans. According to local butchers, this act of state-sanctioned cronyism violated their rights to economic liberty under the recently ratified 14th Amendment, which forbids the states from passing or enforcing any law which abridges the privileges or immunities of U.S. citizens. Slaughter-House would be the first 14th Amendment case heard by the Supreme Court....To Read More.....